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Study notes for LEgal Aspects of E-Commerce
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- University Of South Africa (Unisa)
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Legal Aspects of Electronic Commerce LML4810ASSIGNMENT 01 – Unique No. 771483
Student name: Nwaigwe, Chinweuba Henry ID No: 54224314
1. Introduction
The Internet provides the much needed leverage to reach as many prospective customers as
possible. One of the offshoots of the Internet is the electronic commerce (e-commerce). The
backbone of e-commerce is direct marketing through targeted electronic messages. However
this extensive leverage has been put into negative use. One of such negative uses is the
sending of bulk, unsolicited commercial messages called spam to unsuspecting prospective
recipients referred to as data subjects. A data subject is “any person whose personal data is
being collected, held or processed.”1 In this assignment we would examine the concept of
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spam with specific reference to its meaning, how and why it is transmitted, why it is regarded
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as negative, or criminal in some jurisdictions, and what the authorities in South Africa and
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several other jurisdictions have done to control it. We would also look at what our courts have
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done to supplement the existing legislations in an effort to minimize the abuse emanating from
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spam.
1.1 What is spam?
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aC s
The issue here is the problem of spam; but what is spam? Spam is “unsolicited commercial
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communication.”2 It is “direct marketing by means of any form of electronic communication”3.
However you define it, It has unique identifiable attributes: it could be commercial, it is sent in
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bulk to several users (mostly strangers) located anywhere in the world who did not solicit for it.
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Users receive several of it from different sources within a day. It is distracting and time
consuming to deal with.4 It could be in form of a telephone call, text message (SMS), fax
message or most commonly email.5
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1. https://eugdprcompliant.com/what-is-data-subject/ (Accessed 10/09/2019)
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2. ECT Act section 45
3. POPIA section 69
4. Tladi, S “The Regulation of Unsolicited Commercial Communications (Spam): is the opt-out Mechanism Effective?” South African
Law Journal, 2008 183 178-192
5. POPIA section 69(1)
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, 1.2 South Africa’s response to the menace of spam
We would look at three legislations: The Electronic Communication and Transaction Act 25 of
2002 (The ECT Act), The Consumer Protection ACT 68 of 2008 (CPA) and the Protection of
Personal Information Act 4 of 2013 (POPIA)
1.2.1 The ECT Act.
The ECT Act was promulgated to facilitate electronic transactions and related matters in South
Africa in line with development in other jurisdictions. Thus part of its objective is to “promote
the understanding and, acceptance of and growth in the number of electronic transactions in
the Republic…”6 The ECT Act under the heading unsolicited goods, services or
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communications provides:
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(1) Any person who sends unsolicited commercial communications to consumers,
must provide the consumer
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(a) with the option to cancel his or her subscription to the mailing list of that person; and
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(b) with the identifying particulars of the source from which that person obtained the consumer's
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personal information, on request of the consumer.
(2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication
(3) Any person who fails to comply with or contravenes subsection (1 ) is guilty of an offence and liable, on
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conviction, to the penalties prescribed in section 89( 1).
(4) Any person who sends unsolicited commercial communications to a person who has advised
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the sender that such communications are unwelcome, is guilty of an offence and liable, on
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conviction, to the penalties prescribed in section 89(1).7
Above provision “regulates (does not prohibit) the sending of unsolicited commercial electronic
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communications to consumers.”8 No one is barred from sending bulk unsolicited email
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commercials in South Africa, but when the recipients opt-out, or unsubscribe, such sending
must stop. Again the sender of such commercials must surrender at the request of the
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recipient how the sender got his contact details. Secondly, failure to respond to unsolicited
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communication does not constitute an agreement and there are penalties for failing to comply
with the provisions of this ACT.
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6. ECT Act preamble
7. ECT section 45
8. Papadopoulos, S “Are we about to cure the scourge of spam? A commentary on Current and Proposed South African legislative
Intervention” Journal for Contemporary Roman-Dutch Law 2012 233 223-240
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