The Covid-19 pandemic, which some have described as having escalated the Fourth Industrial
Revolution (4IR), has revealed gaps in the legislative frameworks that deals with electronic
commerce (e-commerce). To date e-commerce has been described as “taking off”, “lagging
behind” or in South Africa as being at 1% of the retail space. In Africa other factors have been
advanced as to the lack of improvement. Identify the prescribed material which speaks to the
above and answer the following questions:
1.1 Discuss the factors that have contributed to the slow progress of e-commerce in South
Africa and Africa at large. (10)
1.2 Identify legislative frameworks which were supposed to address the challenges posed by
e-commerce nationally, regionally and internationally. Also, have the provisions in those
instruments been realised in providing a safe and secure online space for users? (10)
1.3 What is the impact of the regional and international legal instruments you have identified
in 1.2 above on the national framework? (5)
[25 marks]
Question 2
Shortly after the lockdown, you receive a message from Divine, who seeks advice on the
possibility of setting up an online shop seeing that she would not be able to trade physically
for the duration of the lockdown, and there’s uncertainty as to when things will go back to
normal. Divine has been operating her business under the name ‘SANMASK’ which describes
the products she is selling namely: hand sanitisers and masks. Divine has created a database
of her clients to update them on the new developments in the market. Divine would like to find
out from you what the process for setting up an online shop entails, for her to reach a wider
market and continue serving her clients during this period.
2.1 Explain to Divine what a domain name is. (5)
2.2 In the process of registering the domain name, a ‘whois’ search reveals that the domain
name ‘sanmask.co.za’ has already been registered. Advise Divine on what that means
(identify a name (term) that describes that practice). Also distinguish between that practice
from trade-mark infringement. (5)
2.3 Explain to Divine how she can prove that she has “rights” in respect of the name
‘SANMASK’. (5)
2.4 Divine would like to create an electronic database. Explain to her the requirements that
the database must meet to enjoy copyright protection. (10)
[25 marks]
Question 3
The Covid-19 pandemic is affecting how we live and conduct our daily affairs. Nearly all
countries in the world are or were under some form of lockdown or tight measures that were
been put in place to curb the scourge of the virus. More people are now working and
communicating virtually. This move has brought about some challenges; some relating to the
same systems we rely on for daily usage. Role players such as Internet Service Providers
(ISPs) find themselves in difficult positions of having to deal with parties that use their
platforms for some unsavoury activities.
2
, 3.1 Outline the provisions in the ECTA that gives rise to the ISP regime. (5)
3.2 Discuss the ISPs limitation of liability as outlined in the ECTA. (10)
2.3 The ISP regime is not without its short comings. In the article by Marx and O’Brien titled
‘To regulate or to Over-regulate? The Internet Service Provider Liability: The Industry
Representative Body in terms of the ECT Act and Regulations’ (2011) 32 3 Obiter 537-556,
the authors level criticism against the system. Briefly discuss the five criticisms highlighted in
that article regarding the ISP regime. (10)
[25 marks]
Question 4
The term “Permanent establishment” (PE) is defined as a fixed place of business through
which a business of an enterprise is wholly or partly carried on. Write a detailed essay in which
you discuss the impact of electronic commerce on PE. In your answer describe whether the
following can be considered as PE: a website; server; and Internet Service Provider. (25)
[25 marks]
TOTAL MARKS: [100]
END OF PAPER
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