Tana Pistorius and Sizwe Lindelo Snail
Pretoria, South Africa
Welcome to Special Second Issue of JILT. This edition is dedicated to Information Technology Law in South Africa. The papers published in this Issue is the conference proceedings of the Convention on Lex Informatica - The Law on Electronic Communications, Electronic Commerce and Information Technology (2008) organised by law firm Couzyn Hertzog and Horak from 21st to 23rd of May 2008 at the Innovation Hub, Pretoria, South Africa. The tone of the conference was set by Professor Joseph Dumortier of the Katholieke Universiteit, Leuven, who delivered an inspiring keynote address.
Four of the papers presented at the conference are published as peer-reviewed articles. Five contributions are also published as conference papers. The contributions address the legal effect of the South African e-commerce legislation, the Electronic Communication Transactions Act of 2002, namely the legal recognition of electronic contracting, e-consumer protection and the rules for e-document production and e-evidentiary and jurisdictional rules. The remainder of the contributions deals with intellectual property law in the digital environment.
Electronic commerce and e-practice
Sizwe Snail's article gives a broad overview of the South African law on e-contracts. He discuses the legal uncertainties that prevailed prior to the adoption of the South African ECT Act. The article concludes with a discussion of cross-boarder jurisdiction and the applicable principles of conflict of laws. The conference paper by Brendan Hughes on the value of metadata in legal proceedings is a valuable contribution. He points out that even though more than 90% of all new documents are created, communicated and stored electronically, less than 25% of documents produced during discovery or at trial are produced electronically in South Africa. He analyses the ECT Act's provisions on the admissibility and evidential weight of electronic documents and he explains how metadata can assist litigation practitioners in e-discovery.
Consumer protection in e-commerce
The protection of consumers is also addressed. The conference paper by Omphemetse Sibanda deals with the regulation of spam on a comparative basis and the author makes valuable recommendations for the improvement of the protection of consumers against spam by the amendment of the provisions of the ECT Act. Tana Pistorius's article compares the ECT Act's comprehensive on-line consumer protection provisions with the protection the ECT Act offers to natural persons transacting with electronic agents. She concludes that the provisions are over-lapping and often conflicting and suggests until such time the ECT Act is re-vamped the solution lies in the implementation of effective transactional interface platforms.
Intellectual property law in the digital environment
The article by Chris De Villiers and Tumelo Tshaya discusses business method patents and the patenting of computer software in South Africa. They also briefly refer to the debate between those who support the patenting of software and proponents of Free and Open Source Software. The conference paper by Sizwe Snail and Andre van der Merwe on the procedural aspects and the substantive grounds of instituting domain name disputes in South Africa sets the tone for the article on first few South African domain name disputes by Tana Pistorius. She discusses some of the more contentious issues the adjudicators of the South African domain name dispute resolution system have had to deal with, namely reverse domain name high jacking, the true meaning of "rights" and the time when these rights have to be established. The focus of the conference paper by Nkonzo Hlatshwayo is on the court cases that the anti-trust agencies of the U.S. and the E.U. successfully brought against Microsoft for its anti-competitive behaviour. He compares these decisions to the position obtaining in South African competition law and concludes that it is unsure how the South African authorities will deal with a hard core compulsory licensing request in respect of the software industry. Lastly, we are also please to include he conference paper by Pria Chetty on the innovative application of digital copyright law. She analyses the application of "copyleft" principles in light of the provisions of the South African Copyright Act. She concludes her discussion by encouraging copyright owners to rather consider for a moment the digital universe, the product of your intellect and what if…
The editors would like to thank Couzyn Hertzog and Horak for making the conference possible as well as JILT for dedicating this issue to the publication of the conference proceedings.