SA websites not legally compliant

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crbuys

Legal Expert: Internet
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A new study has found that most South African Web sites do not comply with the provisions of the ECT Act and related legislation. IT attorney firm Buys Inc reports that an annual survey of South African Web sites has found the number of sites that fail to comply with the provisions of related legislation grew from 47% in 2002 to 81% this year. Compliance levels dropped by more than 30% in two years, says Buys Inc. See: http://www.itweb.co.za/sections/internet/2004/0409201028.asp

In response to request for a simple guide to making sites legally compliant, Reinhardt Buys of Buys Inc created this Web site compliance guide and checklist. See: http://www.itweb.co.za/sections/internet/2004/0409220806.asp

Reinhardt Buys
 
If I'd known about this stuff before I may not have had Metropolitan Life sending me nasty emails. But then again, they probably would have sent them anyway.

Does the Act apply to web sites hosted overseas, even if they have .co.za domain names, such as this one?

One nice thing about the Terms and Conditions of using a web site is you get the chance to tell people if you don't want them to read your stuff. Not that they'll listen, but it's a nice feeling.

What does the act say about someone using a graphic from Site A on Site B just by providing the required "link" command, i.e. the graphic in question is still downloaded from site A even though the user sees it as part of site B's presentation? A case in point would be my use of logo graphics from dozens of different web sites, including Telkom, the Post Office, major banks, and so on. They are generally used to illustrate a point, and almost always have a link to the respective company's web site.

<hr noshade size="1">
Donn Edwards
<div align="right">Privacy SA: <b>Metropolitan Life</b> wants to sue me. I just don't get it.</div id="right">
 
Well done to Reinhardt Buys for making this available - despite the contention of Heath that it's 'reckless' of business not to invest to ensure compliance, small business would be hard put to find the R2800 required for a professional legal audit as a recurring expense, particularly those operating as one-man shows...
 
<blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica" id="quote">quote:<hr height="1" noshade id="quote"><i>Originally posted by mbs</i>
<br />Well done to Reinhardt Buys for making this available - despite the contention of Heath that it's 'reckless' of business not to invest to ensure compliance, small business would be hard put to find the R2800 required for a professional legal audit as a recurring expense, particularly those operating as one-man shows...
<hr height="1" noshade id="quote"></blockquote id="quote"></font id="quote">

I have to agree: There are far too many laws and regulations a small business have to comply with.

Every month it is at least a PAYE form, unemployment insurance needs to be calculated, Regional services council levies, worksmen compensation, local rates and taxes, training levies, enquiries by these people that needs to be answered, and then every 2nd month VAT. Registrar of companies. BEE rules

And then ECT and whichever other act layers can dream of to pester an SME.

It is almost impossible today to be a small businessman and stay on the right side of the law.

Heath is not correct in accusing small business being reckless by not obeying the law. It is the lawmakers being reckless in piling unaffordable law upon law onto business.

South Africa needs World Class Broadband at World Competitive Prices.
 
<blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica" id="quote">quote:<hr height="1" noshade id="quote">Heath is not correct in accusing small business being reckless by not obeying the law. It is the lawmakers being reckless in piling unaffordable law upon law onto business.<hr height="1" noshade id="quote"></blockquote id="quote"></font id="quote">
Maybe the critics should actually run a small business before they shoot their mouths off!?[:p]

Thanks to Reinhardt Buys and ITWeb for the checklist! At least it's easier to start working out what needs to be said. South Africa needs more legal minds like this.

I had great fun drawing up my Privacy Web site terms and conditions. I'm sure the folks at MetropoliSPAM are going to blow a gasket. But then they shouln't actively misinterpret criticism and turn it into a trademark violation argument.

I foget the name just now, but there was an organisation (SBDC?) that was supposed to promote and fund small businesses. The only problem was that no-one was in the office on a Friday afternoon to take my calls. They were all busy playing golf.[:0] Needless to say that they didn't help many small businesses.[:(]

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Donn Edwards
<div align="right">Privacy SA: <b>Metropolitan Life</b> wants to sue me. [:O]</div id="right">
 
Hi RBuys

Thanks a bunch for the valuable information. I had a good look at the guidelines on the site you recommended (developed) and I am actually considering changing this site to comply with all these guidelines. I have to agree with Kaspaas that the lawmakers should consider the extra work to website owners and small business owners in this regard. It is quite easy to say what is desirable, but to actually create such desirable sites takes time and money…

Regards,

RPM
[email protected]
 
Quick question ---- but wouldn't this legislation only apply to websites actually selling goods or services?
if not it places huge burdens on not-for-profit organisations etc
 
If you are not a business and/or are not offering any goods or services then you do not need to comply with the ECT Act. MyADSL does not technically need to comply with the Act however given its popularity it wouldn't hurt to follow the guidelines to be safe [:)]
 
How about the minimalist approach:
&gt;&gt;&gt;&gt;
Terms and Conditions:
1. Use this site at your own risk
2. Don't believe anything you read here (including this)
3. Questions? Try Google or RTFM
&lt;&lt;&lt;&lt;
That about covers it [;)]
 
Which is why Firefox is so popular - blocks popups by default...[:p]
 
None for me. Been using it since it was still under intensive development pre version 1.0, and it meets all my needs. Depends really on what you expect from a browser - if you need all the bells and whistles, including things like in-built mail client, fancy themes, etc., then you're probably better-off with Mozilla proper. I prefer Firefox's clean and minimalist approach, however - it gets the job done without any fuss...
 
http://www.itweb.co.za/sections/internet/2004/0409271028.asp?A=LEG&S=Legal%20View&O=FPT

...a somewhat different perspective from two other law firms

Legal knives drawn on compliance survey

BY PAUL VECCHIATTO, ITWEB CAPE TOWN CORRESPONDENT

[Johannesburg, 27 September 2004] - Local e-lawyers say there is still a great deal of ‘misinformation' about legal compliance on SA websites.

E-lawyers have taken issue with a survey showing that SA companies' websites are not legally compliant, saying non-compliance is not only a legal issue but a commercial one as well.

Last week, IT attorney firm Buys Inc released its annual survey of SA websites, which said the number of sites that fail to comply with the provisions of related legislation grew from 47% in 2002 to 81% this year. The survey, which was conducted in conjunction with LegalSentry, says compliance levels dropped by more than 30% in two years.

Steven Ferguson of law firm Nicci Ferguson says since the passing of legislation such as the ECT Act, a great deal of misinformation has been given to companies from experts and service providers about the scope of these Acts and the penalties or legal effects of non-compliance.

“It is no wonder that business owners and entrepreneurs with limited budgets have not properly addressed these issues,” he says.

Lance Michalson of Michalsons Attorneys says the issue of compliance can have either a narrow definition or a wide one.

“A narrow definition applies to issues such as fines and criminal liability. A wider definition of compliance is where you determine where your compliance criteria lie and this could mean legal and commercial and organisational objectives,” he says.

Michalson says the overall issue regarding compliance is one of risk. “In a worst case scenario a consumer can cancel a transaction. However, by doing that, a number of legal issues could be raised, such as loss of income or damaging a company's reputation.”

Ferguson goes on to say that once again, the issue of compliance versus best practice is brought into question.

“If one looks at strict compliance, the only statutory duty applicable to normal brochure-style website owners in SA at present is to make certain details accessible on their website: their name and registration number in the case of close corporations, and the full names and nationalities of directors in the case of companies. The criminal penalty for non-compliance is R500 and R400 respectively,” he says.

For e-commerce websites, the consumer protection provisions of Chapter 7 of the ECT Act will be applicable, says Ferguson. “However non-compliance with these provisions will not result in criminal penalties but instead may result in transactions being cancelled by consumers and, in some cases, a claim for damages (where a secure payment system has not been used on the site).”

Michalson says that since most websites cater for business-to-business transactions, they do not need to comply with the ECT Act extensively. “Otherwise they innocently take up legal obligations that they do not need.”
 
rpm

the one real risk you may want to cover is liability for content posted by members - there is a lot of case law regarding moderated forums which suggests that the forum owner/operator can be pinged for defamatory or otherwise unlawful content because the operator holds itself out as being an editor of the content displayed (if u are interested do a google on "cubby v compuserve" & prodigy v stratton oakmont which are the leading cases in the US)

on the other hand the primary responsibility for content lies with the party posting it....except that the poster may have less cash than you to pay for any damages suffered and therefore an aggrieved party may come to try their luck

dominic
________________

there are no experts - everyone is flying by the seat of their pants
 
There is a lot of good information about lawsuits and legal libility of web sites in the Cyberlaw book and web site. I think it covers some of the cases mentioned above. Check out the defamation chapter online.

<blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica" id="quote">quote:<hr height="1" noshade id="quote">mmm, that link opens up a nice little Gator popup.<hr height="1" noshade id="quote"></blockquote id="quote"></font id="quote">I <b>do apologise</b> on my site, and recommend Google Toolbar for IE users. Maybe I should put in a Firefox link as well. I've been using the blocker for so long I forget it's there. I certainly don't add them in myself!
 
<blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica" id="quote">quote:<hr height="1" noshade id="quote"><i>Originally posted by kaspaas</i>
<br /><blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica" id="quote">quote:<hr height="1" noshade id="quote"><i>Originally posted by mbs</i>
<br />Well done to Reinhardt Buys for making this available - despite the contention of Heath that it's 'reckless' of business not to invest to ensure compliance, small business would be hard put to find the R2800 required for a professional legal audit as a recurring expense, particularly those operating as one-man shows...
<hr height="1" noshade id="quote"></blockquote id="quote"></font id="quote">

I have to agree: There are far too many laws and regulations a small business have to comply with.

Every month it is at least a PAYE form, unemployment insurance needs to be calculated, Regional services council levies, worksmen compensation, local rates and taxes, training levies, enquiries by these people that needs to be answered, and then every 2nd month VAT. Registrar of companies. BEE rules

And then ECT and whichever other act layers can dream of to pester an SME.

It is almost impossible today to be a small businessman and stay on the right side of the law.

Heath is not correct in accusing small business being reckless by not obeying the law. It is the lawmakers being reckless in piling unaffordable law upon law onto business.

South Africa needs World Class Broadband at World Competitive Prices.
<hr height="1" noshade id="quote"></blockquote id="quote"></font id="quote">

Kaspaas,

You are right and your points are valid - running a small business in SA is subject to way too much regulatory burdens. However, Parliament makes these laws, not us lawyers. The best we can do is to i) inform the public about the requirements and risks and ii) make compliance reasonably affordable (that's what we try to do with Legalsentry (www.legalsentry.co.za) and giving away info such as the website compliance check list (http://www.itweb.co.za/sections/internet/2004/Compliance_Survey.htm)

Regards,

Reinhardt Buys
 
<blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica" id="quote">quote:<hr height="1" noshade id="quote"><i>Originally posted by reech</i>
<br />Quick question ---- but wouldn't this legislation only apply to websites actually selling goods or services?
if not it places huge burdens on not-for-profit organisations etc
<hr height="1" noshade id="quote"></blockquote id="quote"></font id="quote">

Hallo Reech,

Apart from the requirements detailed in Chapter 7 of the ECT Act (which only applies to e-commerce website), the other requirements apply to all websites hosted in SA or targeting SA consumers. You can download the chapter in the second edition of Cyberlaw @ SA dealing with chapter 7 of the ECT Act from: http://www.legalsentry.co.za/downloads/cyberlaw/cyberlaw-2-chapter-6.pdf

Cheers,[8D]

Reinhardt Buys
 
<i>Originally posted by dominic</i>
<br />http://www.itweb.co.za/sections/internet/2004/0409271028.asp?A=LEG&S=Legal%20View&O=FPT

...a somewhat different perspective from two other law firms

Legal knives drawn on compliance survey

CALL ME STUPID - BUT DOES THIS ITWEB ARTICLE MAKE ANY SENSE?

<i>E-lawyers have taken issue with a survey showing that SA companies' websites are not legally compliant, saying non-compliance is not only a legal issue but a commercial one as well.</i>WHAT ISSUE? IS THE SURVEY WRONG? IS THE RESULT INCOMPLETE? WAS THE SURVEY METHOD INCORRECT? ARE THE LEGAL ISSUES LISTED IN THE WEBSITE COMPLIANCE CHECK LIST WRONG? MISLEADING? MISINFORMATION?(http://www.itweb.co.za/sections/internet/2004/Compliance_Survey.htm)

IF YOU "TAKE ISSUE" WITH SOMETHING, YOU SURELY HAVE TO STATE WITH WHAT...? AND WHY?

<i>Steven Ferguson of law firm Nicci Ferguson says since the passing of legislation such as the ECT Act, a great deal of misinformation has been given to companies from experts and service providers about the scope of these Acts and the penalties or legal effects of non-compliance.</i> SUCH AS? WHO? WHEN? EXAMPLES?

I CHALLENGE STEVEN FERGUSON AND LANCE MICHALSON TO CLARIFY EXACTLY WHAT THEY TAKE ISSUE WITH, TO GIVE EXAMPLES OF WHATEVER THEY CONSIDER TO BE "MISLEADING" OR "MISINFORMATION".

WITH A TITLE LIKE "LEGAL KNIVES DRAWN" THE ARTICLE SURELY DISSAPOINTS. MAYBE THE TWO LEARNED LAWYERS QUOTED IN THE ARTICLE COULD SHOW US THEIR "LEGAL KNIVES"... IF ANY!

COME ON GUYS, DON'T BE SHY NOW.

CHEERS[8D]




Reinhardt Buys
Click to expand...
 
Hello Reinhardt,

thx for your work and contributions.

Could you please define "<b>a south african website</b>"

Does this mean a website hosted on a computer located within the borders for example ??

I bet there might be some who wish to avoid being a "south african website"
 
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