It is no secret that E-commerce is growing at a rapid pace in South Africa, especially during the COVID-19 pandemic. E-commerce is the method of offering and procuring goods and services using electronic means to transact, where such transaction involves the exchange of commodities and information or data transfer between consumers and businesses.
The strong growth in E-commerce can be accredited to the introduction of various secure payment methods, increased mobile penetration, consumers seeking convenience and a change in spending habits that see more consumers moving into the online shopping space.
Various laws govern different elements of E-commerce. The Electronic Communications and Transactions Act (“ECTA”) acts as the primary legislation in the regulation of E-commerce in South Africa to provide legal certainty on E-commerce and electronic records. The ECTA facilitates and regulates electronic communications and transactions, including issues relating to consumer protection, electronic signatures, electronic evidence and cybercrime.
Since E-commerce allows for transactions to happen across borders, any electronic agreement must provide for a clause that expressly states the law that will govern the agreement for there not to be any doubt to the question of jurisdiction.
South African law further governs what information needs to be displayed on an E-commerce website. It is imperative to have proper terms and conditions that set out the sales, product and service information.
Insofar as privacy is concerned, the Protection of Personal Information Act (“POPI”) administers the protection of user data, specifically the consumer’s personal information. It is important to note that for a business to be able to enforce their terms and conditions, the consumer must have agreed to them before the transaction taking place.
Although the ECTA is the primary legislation governing E-commerce, your business must be compliant with general legislation that may be applicable, such as the National Credit Act, the Copyright Act, the Value Added Tax Act and most importantly the Consumer Protection Act.
We offer legal advice and assistance in respect of all your E-commerce requirements, whether it be drafting the terms and conditions of your website or ensuring that your website is compliant with the laws of South Africa.