The enactment of the Electronic Communications and Transactions Act 2002 (herein referred to as the ‘ECTA’) introduces some aspects which needs to be considered when creating websites for businesses and concluding electronic transactions.
Transaction (ECTA definition): “a transaction of either a commercial or non-commercial nature, and includes the provision of information and e-government services”.
Wherever an Electronic Transaction is concluded, ECTA will apply to that transaction. Certain Sections or aspects of the Consumer Protection Act (CPA) do not apply to e-commerce transactions if the ECTA applies to them and/or where the CPA Section specifically refers to the ECTA Section.
The CPA makes provision for the fact that, where more than one Act is applicable, the Act affording the greater protection to the consumer will prevail over the alternative provision. During the electronic transaction, the consumer will not have the opportunity to walk into a shop and inspect the goods that have been advertised/marketed. They will not have the direct opportunity to address inadequacies or errors regarding pricing, etc. Due to this unique way of purchasing goods and/or services, the ECTA will be applicable (in part) to such a transaction. The whole of the CPA is, however, not disregarded and will still apply in the instances where it does not make specific provision for certain sections of the ECTA to apply.
Chapter VII of the ECTA makes provisions for the protection of the consumer in that it provides for Section 43, 44 and 45. Section 43 is concerned with what type of information has to be displayed to the consumer on a supplier’s website. Section 44 makes provision for a 7 day cooling-off period and Section 45 is specifically directed at unsolicited goods, services and communications.
When processing information, the POPI Act as well as the ECTA might be applicable. Until the POPI Act comes into full effect, the ECTA will regulate personal information processed from a website. The POPI Act stipulates that where any other legislation provides for conditions for the lawful processing of personal information that are more extensive than those set out in Chapter 3 of the POPI Act, the extensive conditions will prevail.
It is stressed that the ECTA has an enormous impact on day-to-day business transactions and should be taken into consideration.