Electronic Communications & Transactions Bill: formal deliberations & voting

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
3 June 2002
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL: FINAL DELIBERATIONS

Chairperson

As passed: Final version of amendments passed by Committee [B8A-2002] [.pdf file]
As passed: Consolidated version of the Bill with amendments [B8B-2002] [.pdf file]
Proposed Amendments to Bill: Document A (see Appendix 1)
Redraft of Chapter X (Appendix 2)
Business Day article of 3/6/02: State's plan on internet domain names raises alarm (see Appendix 3)
ICANN President’s Report [ICANN website]
Principles for the Delegation and Administration of Country Code Top Level Domains
DP proposed amendments for Clauses 11, 19, 34
Proposed amendments by Cequrux Technologies (e-mail [email protected] for document)

SUMMARY
The Bill was passed by the Committee, with amendments, and referred to the NCOP. Changes to Clause 1 were made during the meeting (see minutes below)

Clauses 2, 4, 5, 10, 11, 13, 15, 18, 19, 20, 21, 24, 26, 29, 34, 35, 37, 38, 39, 40, 42, 43, 46, 48, 52, 58, 81-83, 87, 90, 93
Agreed to as amended by the document entitled "Proposed Amendments".

Clauses 3, 6, 7, 8, 9, 12, 14, 16, 17, 22, 23, 25, 27, 28, 30-33, 36, 41, 44, 45, 47, 49-51, 53-57, 74-80, 84-86, 88, 89, 91, 92, 94-98
The tabled bill version of these clauses were agreed to without amendments.

Chapter X: Domain Name Authority and Administration
The tabled bill version of this chapter as contained in the Electronic Communications and Transactions Bill [B8-2002] was deleted, and the version contained in the document entitled "Redraft of Chapter X" was adopted as the new template. A few slight amendments were made to Clauses 60, 61, 63, 65, 66, 68.

One change was the inclusion of the following sub clause in Clause 63: If the minister is not satisfied with the recommendation of the panel under sub (3), she may request the panel to make a new recommendation.

Clauses 60-63, 65-66
The clauses in the "Redraft of Chapter X" were agreed to - but amended during the discussion.

Clauses 64, 67, 69, 70
The clauses in the "Redraft of Chapter X" agreed to without amendments.

MINUTES
Morning / Afternoon session: During these sessions, the Committee finalised the Clause 1 definitions (changes incorporated in the minutes below) and agreed to Clauses 1- 22.

The Chair referred to the article in the Business Day and said that if the quotes are correct then he is disturbed by the attitude expressed therein. He added that it should be a great concern to business and all South Africans that one person could pull the plug on the internet because of what Parliament might do. He said that the committee had gone out of its way to hear the views of all stakeholders and that there were still stakeholders present at this meeting with whom the committee will still engage. The chair stressed that Parliament would not pass laws that benefit one person. The law must be in the best interest of the public who make up many different people. He concluded that as the Bill had not yet been finalised, there was still room for discussion. The Bill would only be concluded that day.

The Committee started deliberations with Clause 1, the definition section, with the aim of working through the Bill clause by clause and formally adopting each clause.

Chapter 1 – Interpretation, Objects and Application.
"addressee", in respect of a data message, means a person who is intended by the originator to receive the data message, but not a person acting as an intermediary in respect of that data message;

The Committee agreed to this definition and it was adopted unchanged.

"advanced electronic signature" means an electronic signature which results from a process which has been accredited by the Authority as provided for in section 38;

The Committee agreed to this definition and it was adopted unchanged.

"authentication products or services" means products or services designed to identify the holder of an electronic signature to other persons;

The Committee agreed to this definition and it was adopted unchanged.

"authentication service provider" means a person whose authentication products or services have been accredited by the Authority under Clause 38 or recognised under Clause 41;

The Chair said that there are two authorities the first was for the purpose of chapter six where the DG acts as the accreditation authority and the other is the authority established in terms of chapter ten.

Adv Kellner (State Law Adviser) reminded the committee that all the references to ‘authority’ in chapter six will be replaced by ‘accreditation authority.’

The chair said that the word ‘accreditation’ would have to be added to the definition of authentication service provider.

The committee agreed to this and the definition as passed by the committee reads as follows:

"authentication service provider" means a person whose authentication products or services have been accredited by the Accreditation Authority under Clause 38 or recognised under Clause 41;

"Authority", for purposes of-
(a) Chapter VI, means the Director-General actin(g as the Accreditation Authority as provided for in that Chapter;
(b) Chapter X, means the .za Domain Name Authority established by that Chapter;

Adv Kellner advised that sub (a) is not needed anymore because chapter six no longer refers to ‘authority’. The deletion of sub (a) was agreed to. In respect of sub (b) he said that the committee had not yet decided what to do in the chapter itself and the definition should be returned to later. Chapter ten could establish a new authority or the committee could decide to retain the existing authority.

The chair suggested that the words ‘established by that Chapter’ be removed then it would not matter what approach is taken in Chapter Ten itself. This amendment was agreed to by the committee. The new definition reads as follows:

"Authority", for purposes of-
(a) Chapter X, means the .za Domain Name Authority;

"automated transaction" means an electronic transaction conducted or performed, in whole or in part, by means of data messages in which the conduct or data messages of one or both parties are not reviewed by a natural person in the ordinary course of such natural person's business or employment;

The Committee agreed to this definition and it was adopted unchanged.

"browser" means a computer program which allows a person to read hyperlinked data messages;

The Committee agreed to this definition and it was adopted unchanged.

"cache" means high speed memory that stores data for relatively short periods of time, under computer control, in order to speed up data transmission or processing;

The Committee agreed to this definition and it was adopted unchanged.

"ccTLD" means country code top level domain in the top level of the global domain name system assigned according to the two-letter codes in the International Standard ISO 3166-1 (Codes for Representation of Names of Countries and their Subdivision);

Ms Smuts (DP) read from a public submission that suggested that the definition be amended slightly.

The suggested amendment was agreed to and the new definition will read as follows:

"ccTLD" means country code domain at the top level of the internet’s domain name system assigned according to the two-letter codes in the International Standard ISO 3166-1 (Codes for Representation of Names of Countries and their Subdivision);

"certification service provider" means a person providing an authentication product or service in the form of a digital certificate attached to, incorporated in or logically associated with a data message;

The Committee agreed to this definition and it was adopted unchanged.

"consumer" means any natural person who enters or intends entering into an electronic transaction with a supplier as the end user of the goods or services offered by that supplier;

Mr Gore (DP) read from the submission of the Consumer Affairs Committee who felt that the definition of consumer might be too restrictive. They suggested that there be a cross reference with the Consumer Affairs Act to afford consumers in this Bill more protection.

This definition was held over to allow the State Law Advisers to look at the two pieces of legislation. When the definition was revisited Adv Kellner advised that if the definition is left as is the consumer will still be entitled to the protection of the Consumer Affairs Act. he disagreed with the submission.

On this advice the Committee passed the definition as is.

"Consumer Affairs Committee" means the Consumer Affairs Committee established by section 2 of the Consumer Affairs (Unfair Business Practices) Act, 1988 (Act No.71 of 1988);

The Committee agreed to this definition and it was adopted unchanged.

"critical data" means data that is declared by the Minister in terms of section 54 to be of importance to the protection of the national security of the Republic or the economic and social well-being of its citizens;

The Committee agreed to this definition and it was adopted unchanged.

"critical database" means a collection of critical data in electronic form from where it may be accessed, reproduced or retracted;

Mr Gore referred to the Banking Council submission that said that there was a typo in this definition as the word ‘retracted’ should read ‘extracted.’

"critical database administrator" means the person responsible for the management and control of a critical database;

The Committee agreed to this definition and it was adopted unchanged.

"cryptography product" means any product that makes use of cryptographic techniques and is used by a sender or recipient of data messages for the purposes of ensuring - (a) that such data can be accessed only by relevant persons;
(b) the authenticity of the data;
(c) the integrity of the data: or
(d) that the source of the data can be correctly ascertained;

"cryptography provider" means any person who provides or who proposes to provide cryptography services or products in the Republic;

"cryptography service" means any service which is provided to a sender or a recipient of a data message or to anyone storing a data message, and which is designed to facilitate the use of cryptographic techniques for the purpose of ensuring-
(a) that such data or data message can be accessed or can be put into an intelligible form only by certain persons;
(b) that the authenticity or integrity of such data or data message is capable of being ascertained;
(c) the integrity of the data or data message; or
(d) that the source of the data or data message can be correctly ascertained;

Under the three definitions dealing with cryptography Ms Smuts said that when referring to cryptography it must be made clear that what is being referred to is encryption. This was in line with the Namespace submission. She added that sub (b) and (c) of the definition of cryptography product and sub (b), (c) and (d) of the definition of cryptography service must be deleted because the chapter has nothing to do with the things listed in those sub paragraphs.

Mr Gore wanted the definitions to allow for the exemption of registration for employees if their employers are registered. He also wanted open source software to be excluded from the ambit of these provisions.

The chair replied that exemptions can be put in the Chapter and when the Chapter is dealt with the point can be raised.

The chair asked Ms Smuts if there was anything wrong with the definitions as they are.

Ms Smuts replied that there was nothing wrong with the definitions but it was the chapter that messes everything up.

The Chair asked if she would object if it is passed as is.

Ms Smuts said that she would not object because there was nothing wrong with the definitions.

The definitions were passed as is.

"cyber inspector" means an inspector referred to in Chapter XII;

The Committee agreed to this definition and it was adopted unchanged.

"data" means electronic representations of information in any form;

The Committee agreed to this definition and it was adopted unchanged.

"data controller" means any person who electronically requests, collects, collates, processes or stores personal information from or in respect of a data subject;

The Committee agreed to this definition and it was adopted unchanged.

"data message" means data generated, sent, received or stored by electronic means and includes-
(a) voice, where the voice is used in an automated transaction; (b) a web page; and (c) a stored record;

Ms Vos (IFP) referred to a submission by ISOC who said that the reference to web page under this definition created some confusion as web page is defined later as well.

Adv Kellner suggested that the reference to web page be deleted.

The committee agreed to this amendment.

"data subject" means any natural person from or in respect of whom personal information has been requested, collected, collated, processed or stored, after the commencement of this Act;

The Committee agreed to this definition and it was adopted unchanged.

"Department" means the Department of Communications;

The Committee agreed to this definition and it was adopted unchanged.

"Director-General" means the Director-General of the Department;

The Committee agreed to this definition and it was adopted unchanged.

"domain name" means an alphanumeric designation that is registered or assigned in respect of an electronic address on the Internet;

Ms Vos read from another submission that said that the definition should include a reference to ‘resource record’ because a domain name was not only assigned to an electronic address.

Mr Barrett (Cequrux) advised that ‘resource record’ was another highly technical term and did not think it would be appropriate to use the term. He suggested that the word ‘other resource’ be used.

The committee agreed to the amendment and the new definition will read as follows:

"domain name" means an alphanumeric designation that is registered or assigned in respect of an electronic address or other resource on the Internet;

"domain name system" means a system to translate domain names into IP addresses;

Mr Barret said that domain name systems do not only translate domain names into IP addresses. He suggested that the definition should read:

"domain name system" means a system used on the internet to translate domain names into IP addresses and other information.

Ms Conway (Advisor to the CEO of the Post Office) said that the words ‘used on the internet’ limits the application and does not take into account that there are private domain name systems.

The chair favoured a more general approach and the words ‘used on the internet’ was not added. The definition as agreed to by the committee reads:

"domain name system" means a system to translate domain names into IP addresses and other information.

"e-government services" means any public service provided by electronic means 40 by any public body in the Republic;

The Committee agreed to this definition and it was adopted unchanged.

"electronic" means digital or other intangible form;

The chair felt that everyone knew what electronic meant and asked if the definition could be deleted.

Adv Kellner advised that the definition could be deleted then the normal dictionary meaning would apply.

The committee agreed to delete the definition.

"electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to data messages or performances in whole or in part, in an automated transaction;

The Committee agreed to this definition and it was adopted unchanged.

"electronic communication" means a communication by means of data messages;

The Committee agreed to this definition and it was adopted unchanged.

"electronic signature" means data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature;

The Committee agreed to this definition and it was adopted unchanged.

"e-mail" means electronic mail, a data message used or intended to be used as a mail message between the originator and addressee in an electronic communication;

The Committee agreed to this definition and it was adopted unchanged.

"home page" means the primary entry point web page of a web site;

The Committee agreed to this definition and it was adopted unchanged.

"hyperlink" means a reference or link from some point in one data message directing a browser or other technology or functionality to another data message or point therein or to another place in the same data message;

The Committee agreed to this definition and it was adopted unchanged.

"ICANN" means the Internet Corporation for Assigned Names and Numbers, a California non-profit public benefit corporation established in terms of the laws of the state of California;

Mr Maziya (ANC) said that the definition does not say that California is in the USA, it just says California.

The Committee agreed that the definition will say California, USA.

"information system" means a system for generating, sending, receiving, storing, displaying or otherwise processing data messages and includes the Internet and WAP communications;

The Committee agreed to this definition and it was adopted unchanged.

"information system services" includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems. the transmission or routing of data messages between or among points specified by a user and the processing and storage of data. at the individual request of the recipient of the service;

The Committee agreed to this definition and it was adopted unchanged.

"intermediary" means a person who, on behalf of another person. whether as agent or not, sends, receives or stores a particular data message or provides other services with respect to that data message;

The Committee agreed to this definition and it was adopted unchanged.

"Internet" means an interconnected system of networks that connects computers around the world via TCP/IP and includes future versions thereof;

Adv Kellner said that the word ’an’ must be changed to ‘the’.

Ms Smuts suggested that ‘via’ should be replaced with using.

These amendments were agreed to by the committee.

"IP address" means the unique set of alphanumerical characters identifying the location of a computer or data message on an information system or component part thereof;

Many submissions said that the reference to location was incorrect. Mr Barret suggested that the definition read as follows:

"IP address" means the unique set of alphanumerical characters identifying the point of attachment of a computer or data message on an information system or component part thereof;

The chair said that attachment does not side good and suggested that the word ‘ connection be used instead. The committee agreed and the definition was adopted with the amendment.

"Minister" means the Minister of Communications:

The Committee agreed to this definition and it was adopted unchanged.

"originator" means a person by whom, or on whose behalf. a data message purports to have been sent or generated prior to storage, if any, but does not include a person acting as an intermediary with respect to that data message;

The Committee agreed to this definition and it was adopted unchanged.

"person" includes a public body;

The Committee agreed to this definition and it was adopted unchanged.

"personal information" means information about an identifiable individual. including, but not limited the
(a) information relating to the race, gender, sex. pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation. age. physical or mental health, well-being, disability, religion, conscience. belief. culture, language and birth of the individual;
(b) information relating to the education or the medical. criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
(c) any identifying number, symbol, or other particular assigned to the individual;
(d) the address, fingerprints or blood type of the individual;
(e) the personal opinions, views or preferences of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
(f) correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further. correspondence that would reveal the contents of the original correspondence;
(g) the views or opinions of another individual about the individual;
(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but excludes information about an individual who has been dead for more than 20 years;

The Committee agreed to this definition and it was adopted unchanged.

"prescribe" means prescribe by regulation under this Act;

The Committee agreed to this definition and it was adopted unchanged.

"private body" means-
(a) a natural person who carries or has carried on any trade, business or
profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession; or
(c) any former or existing juristic person, but not a public body;

The Committee agreed to this definition and it was adopted unchanged.

"public body" means-
(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or
(b) any other functionary or institution when-
(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
(ii) exercising a power or performing a function in terms of any legislation;

The Committee agreed to this definition and it was adopted unchanged.

"registrant" means an applicant for or holder of a domain name;

The Committee agreed to this definition and it was adopted unchanged.

"registrar" means an entity which is licensed by the Authority to update a repository;

The Committee agreed to this definition and it was adopted unchanged.

"registry" means an entity licensed by the Authority to manage and administer a specific subdomain;

The Committee agreed to this definition and it was adopted unchanged.

"repository" means the primary register of the information maintained by a registry;

The Committee agreed to this definition and it was adopted unchanged.

"second level domain" means the subdomain or subdomains immediately following the ccTLD, signifying a category or type of domain name:

The committee was unsure whether the definition should say ‘following’ the ccTLD or ‘preceding’ the ccTLD. When the address is written, e.g. www.abc.org.za, org is the second level domain and precedes za which is the ccTLD. At the same time if one looks at it vertically the second level domain follows the ccTLD. The committee agreed to leave the reference to following.

Mr Barret suggested small changes that were accepted. The definition as adopted by the committee reads as follows:

"second level domain" means the subdomain immediately following the ccTLD.

"SMMEs" means Small, Medium and Micro Enterprises contemplated in the Schedules to the Small Business Development Act, 1996, Act No. 102 of 1996):

The Committee agreed to this definition and it was adopted unchanged.

"subdomain" means any subdivision of the .za domain name space which begins at the second level domain;

The Committee agreed to this definition and it was adopted unchanged.

"TCP/IP" means the Transmission Control Protocol Internet Protocol used by an information system to connect to the Internet;

"TLD" means the top level domain of the domain name system;

The Committee agreed to this definition and it was adopted unchanged.

"third party". in relation to a service provider. means a subscriber to the service provider's services or any other user of the service provider's services or a user of information systems:

The Committee agreed to this definition and it was adopted unchanged.

"transaction" means a transaction of either a commercial or non-commercial nature, and includes the provision of information and e - government services:

The Committee agreed to this definition and it was adopted unchanged.

"universal access" means access by all citizens of the Republic to Internet connectivity and electronic transactions:

The Committee agreed to this definition and it was adopted unchanged.

"WAP" means Wireless Application Protocol, an open international standard developed by the Wireless Application Protocol Forum Limited. a company incorporated in terms of the laws of the United Kingdom, for applications that use wireless communication and includes Internet access from a mobile phone:

The Committee agreed to this definition and it was adopted unchanged.

"web page" means a data message on the World Wide Web;

The Committee agreed to this definition and it was adopted unchanged.

"web site" means any computer on the Internet containing a home page or web page:

The chair said that the reference to computer was odd.

Mr Barret agreed and suggested that the word be ‘computer’ be changed to ‘location.

The Committee agreed to this definition with the amendment.

"World Wide Web" means an Internet retrieval system for hyperlinked distributed information and includes all data messages residing on all computers linked to the Internet;

The Committee with the help of the experts present were trying to come up with another definition for the World Wide Web. One that is a bit more simple. The exercise was not very fruitful until an official of the Department of Communications handed the chair an e-commerce text book that had a definition.

The definition was read a couple of times and the members as well as the experts thought it was quite good.

Adv Kellner advised that the definition referred to ‘server’ and that he did no know what that was and the Bill did not define it.

The chair asked if the word computer can be used instead.

Mr Barret said that it could.

All the references to server was therefore replaced by computer.

The amendment agreed to by the committee reads as follows:

"World Wide Web" means an information browsing framework that allows users to locate and access information stored on a computer and to follow references from one computer to related information stored on another computer.

".za domain name space" means the .za ccTLD assigned to the Republic according to the two-letter codes in the International Standard ISO 3166-1.

The Committee agreed to this definition and it was adopted unchanged.

After adopting Clause 1, the Committee worked through Clauses 2 to 21 adopting each [This part of the meeting between 5pm and 6pm was not minuted.]State's plan on internet domain names raises alarm

Political Correspondent

CAPE TOWN A proposal by the parliamentary communications committee to establish a section 21 company to manage domain names on the internet in SA has raised alarm bells about a looming crisis that could see all internet connections in the country cut off.

Supported by the communications department and the African National Congress, the proposals in the Electronic Communications and Transactions Bill on setting up a domain name authority are vehemently opposed by opposition parties and the current administrator of the ZA domain.

The committee plans to finalise and vote on the bill today . Much of the chapter on the domain names was approved and voted on on Friday but could be discussed again today. Government is opposed to the current administrative system for the ZA domain name, which it says is "monopolistic" and without a regulatory framework to manage the expected explosive growth of the internet.

Communications chairman Nkenke Kekana said that the domain name authority had to be "representative, accountable to all South Africans and proactive in promoting the internet".

In terms of the bill, the communications minister would appoint a panel which would recommend nominated candidates to be appointed to the board of a section 21 firm.

But domain name administrator Mike Lawrie, who is one of the cochairmen of Namespace ZA, which will take over the administration in future, has objected to the excessive powers the minister would wield over the domain name system in SA.

Lawrie said this was "quite unacceptable". He warned of a "national disaster", saying he would not hand over the administration if government interference in the internet was provided for in law.

If Lawrie refused to get himself licensed as required by the bill, this would mean he could no longer continue operating and that the administration of the ZA domain name would collapse.

This would mean that normal internet and e-mail connections would no longer function.

"The vast majority of internet connections in and into this country will simply not happen, because the ZA domain name servers will grind to a halt and make all subdomains of ZA totally unreachable," Lawrie said.

The gov.za domain name would also not work. "Parliament cannot pass legislation and expect that the internet will kowtow to that legislation. It does not work that way. The legislation must in keeping with the standards of the internet, or it will lead to problems.

"There are very clear standards laid down for how a redelegation of a country code domain shall take place," he said.

For the redelegation to meet international standards laid down by the Internet Corporation for Assigned Names and Numbers there has to be agreement between Lawrie, as the present administrator, government, and significant interested parties.

Democratic Alliance communications spokeswoman Dene Smuts said the bill "bald-facedly expropriates" the existing domain name authority.

She rejected government's rationale for a new administrative system, saying a domain name authority did not and could not roll out services.

Jun 03 2002 12:00:00:000AM Linda Ensor Business Day 1st Edition

Evening session
Clause 21: Automated transactions

Mr Otto Kellner, from the Office of the State Law Advisor (SLA), agreed with the proposed amendment in the document entitled "Proposed Amendments to the Electronic Communications and Transactions Bill" (Document A).

The Chair agreed.

Ms M Smuts (DP) questioned whether this adequately covers the concerns raised by the Johannesburg Stock Exchange (JSE) in their written submission. It is thus suggested that this provision be relocated to Clause 43 in the Electronic Communications and Transactions Bill [B8-2002] (the Bill), as it properly belongs under the section entitled "Consumer Protection".

The Chair replied that this matter will be considered further, as well as whether it would not be more suitable to have both clauses dealing with the similar issue. This cannot be removed from Clause 21 because this clause deals with agreements, whereas Clause 43 deals with consumer protection.

Ms Smuts reiterated her original objection with clause regarding the incorporation of natural persons in this clause.

The Chair questioned whether this clause applies to the JSE if it functions according to its own rules and under the control or subject to the approval of the Financial Services Board.

Mr Kellner responded that the JSE rules would take precedence over Clause 21 if those rules regulate automated transactions specifically. Yet if they do not, Clause 21 prevails.

The Chair suggested that the JSE would then have to devise its own set of rules. It was noted that Members agree to this clause, as amended. It was also noted that the DP abstains.

Clause 22: Variation by agreement between parties and Clause 23: Formation and validity of agreements
These tabled bill version of these clauses were agreed to by Members.

Clause 24: Time and place of communications, dispatch and receipt
The Chair noted that Members agreed to this clause, as amended by Document A.

Clause 25: Expression of Intent or other statement
Ms Smuts recommended that this clause be moved to Clause 13.

Mr Kellner stated that the two clauses are similar, but they could be retained in their current formulation.

The Chair suggested that these two clauses should remain as they currently stand, as no harm would be caused. It was noted that Members agree to the tabled bill version of the clause.

Clause 26: Attribution of data messages to originator
The Chair noted that Members agreed to the clause, as amended by Document A.

Clause 27: Acknowledgement of receipt of data message
The tabled bill version is accepted.

Chapter IV: E-Government Services
Clause 28: Acceptance of electronic filing and issuing of documents
Ms Smuts suggested that the term "public body" be removed from Clause 28, and be replaced with "government department".

The Chair noted that this proposed amendment was not carried, and the Committee agrees to the current formulation of the Bill. It was also noted that the DP objects to this provision.

Clause 29: Requirements may be specified
The Chair requested clarity on the precise meaning of the first proposed amendment contained in Document A.

Mr Kellner replied that the aim is to elevate the standard of Authentication Service Provider (ASP) to a preferred ASP.

The Chair agreed.

Ms Smuts suggested that the second amendment proposed in Document A should not be carried, as this Committee cannot pre-empt this decision by law because the Minister of Communications (the Minister) should rather be granted the power to declare the preferred ASP once it has proven that it is indeed the best candidate for the role. Furthermore, the inclusion of "universal access" here is troublesome, as this is not a function of the ASP.

Mr Kellner proposed that the second amendment in Document A be accepted.

The Chair noted that Clause 29 is accepted, as amended by Document A.

Chapter V: Cryptography Providers
Clause 30: Register of cryptography providers
Ms Smuts recommended that the entire chapter be deleted.

The Chair noted that this proposal was not carried, and the current formulation of the clause would be retained.

Clause 31: Registration with Department and Clause 32: Restrictions on disclosure of information
The tabled bill versions were accepted.

Clause 33: Application of Chapter and offences
Ms S Vos (IFP) expressed that she did not wish to re-open the debate, but medical records of the individual should not be included here.

The Chair suggested that it should, as a South African could be exposed to the E-Bola virus, and surely this would pose a legitimate concern to the national interest.

Ms Smuts contended that this provision merely allows the individual him-/herself to gain access to those medical records, but does not allow the Minister of Health to "snoop" into their medical records.

The Chair noted that the tabled bill version is agreed to by Members.

Chapter VI: Authentication Service Providers
Clause 34: Definition
The Chair noted that Members agreed to the clause, as amended by Document A.

Clause 35: Appointment of Authority and other officers
The Chair noted that Members agreed to the clause, as amended by Document A.

Clause 36: Accreditation to be voluntary
The Chair requested Mr Kellner to clarify the implications of this clause.

Mr Kellner suggested that it remain as it currently stands.

Ms Smuts contended that it should be reconsidered, because the previous chapter provides that accreditation is mandatory.

Mr Kellner disagreed with Ms Smuts, as that chapter only requires cryptography service providers to register, but everyone else is voluntary.

Mr A Maziya (ANC) stated that it is true that the Asp uses cryptography, and the ANC has suggested that the mandatory registration of Cryptography Service Providers (CSP) be removed. It has to be remembered that the ASP services the individual and should therefore not be required to register. Furthermore, the CSP provides the tool to gain access and the ASP confirms that that is the "right key" to use to gain such access.

The Chair stated that the SLA has suggested that the tabled bill version be retained, and noted that Members agreed. It was also noted that the DP is opposed to this decision.

Clause 37: Powers and duties of Authority
The Chair noted that Members agreed to the clause, as amended by Document A.

Clause 38: Accreditation of authentication products and services
The Chair noted that Members agreed to the clause, as amended by Document A.

Clause 39: Criteria for accreditation
Mr V Gore (DP) proposed that a new Sub clause 6 be added to exempted the following from this clause: "employees whose employers have already registered as Accredited Service Providers", as well as the "providers of cryptography products that are in the public domain, and suppliers of open-source cryptography products". The latter should be included to cover the concern raised by the Linux Professionals Association.

The Chair requested the SLA to respond on the implications of the first proposed amendment.

Mr Kellner replied that this depends on the precise nature of the work done by the specific employee, because of it someone who merely "fetches [the] tea", s/he would not have to register. Yet it might be necessary if the employee him-/herself in fact provides the cryptography service. The courts would interpret such a person as someone who makes a business out of providing this service.

The Chair stated that the fact of the matter is that if this individual makes his/her living as the provider of this service, s/he has to register.

Mr Alan Barrett, from Cequrux Technologies, suggested that Mr Maziya seems to have misunderstood the purpose behind the proposed amendment, as it aims to exempt employees whose employers have to already registered. Mr Kellner has informed the Committee that the courts would not grant this exemption, but It was suggested that it would perhaps be more suitable to state this expressly in legislation, as this would save unnecessary time in the courts.

Furthermore, if the South African Post Office (SAPO) currently has ten thousand clerks providing this service, the amendment proposes that they would not have to register individually, only SAPO would have to register. It also has to be remembered that the provision currently does not require such employees to register, but the amendment is proposed to avoid any ambiguity that may arise at a later date. This amendment would also deny an exemption to those employees who might break away and provide this service themselves.

Mr Maziya suggested that the Bill should be silent on this matter, as the employees are not service providers, but "only technicians".

The Chair expressed his sympathy with regard to open-sourced software, but informed Mr Gore that this Bill was not the proper forum within which to address this matter. Thus Mr Gore’s amendments are not accepted. It was noted that Members agreed to Clause 39, as amended by Document A.

Clause 40: Revocation or termination of accreditation
The Chair noted that Members agreed to the clause, as amended by Document A.

Clause 41: Accreditation of foreign products and services
The tabled bill version of this clause was accepted.

Clause 42: Accreditation regulations
The Chair noted that Members agreed to the clause, as amended by Document A.

Chapter VII: Consumer Protection
The Chair noted DP’s opposition to this entire chapter, and the opinion of the SLA will be requested on this matter.

Clause 43: Scope of application
The Chair noted that the DP has proposed the insertion of a new Sub clause 3 to following effect:

This chapter does not apply to the regulatory authority established in terms of any statute or to any person regulated by any such statute if that statute prescribes consumer protection provisions in respect of electronic transactions.

Ms Vos inquired whether medicines are incorporated under Sub clause 2(f), especially scheduled medicines.

The Chair replied that the proposed amendment accommodates the concern raised by Ms Vos, because the medicine industry does have a regulatory body, and this amendment would thus force those who trade in scheduled medicines via the Internet to conform with the regulatory structure. Furthermore, the word "statute" in the proposed amendment should be changed to "law".

Members agree to this clause, as amended by the insertion of Sub clause 3.

Clause 44: Information to be provided and Clause 45: Cooling-off period
The Committee agreed to the tabled bill versions.

Clause 46: Unsolicited goods, services or communications
The Chair requested those "anti-spammers" to propose a suitable fine to be imposed on those engaged in "spamming", as SPAM cannot be banned because it is a legitimate marketing tool. Perhaps a new Sub clause 3 could be inserted to read something like "without any disregard to Sub clause 1, any person who has sent unsolicited communications to a consumer, even after the consumer "has said no", that person, if s/he continues to send those unsolicited communications, shall be guilty of an offence not to exceed "X" amount of years."

Ms Smuts suggested that this provision be inserted after Clause 93(1), as that clause already contains a penalty provision.

Mr Barrett noted that Clause 46(1) does not create an offence, and should therefore be amended to provide that a violation of that clause amounts to an offence.

Ms Robyne Conway, Strategic Advisor: Technology to the CEO of SAPO, suggested that it also be made an offence for them to sell one’s personal data after the individual has requested that his/her name be taken off their mailing list.

The Chair noted that Clause 46 is accepted, as amended by this insertion.

Clause 47: Performance
The Committee agreed to the tabled bill version.

Clause 48: Applicability of foreign law
It was noted that Members agree to the tabled bill version of this clause, and that the DP opposes this provision.

Clause 49: Non-exclusion and Clause 50: Complaints to Consumer Affairs Committee
The Committee agreed to the tabled bill versions of these clauses.

Chapter VIII: Protection of Personal Information
Clause 51: Scope of protection of personal information
The Committee agreed to the tabled bill version.

Clause 52: Principles for electronically collecting personal information
Ms Smuts requested that Sub clause 8 be deleted, as the precise meaning of the term "obsolete" has not been defined, nor would the data controller be in a position to accurately determine when information has become "obsolete". Furthermore, the amendment proposed by Document A is supported, as the writing requirement is becoming increasingly obsolete in this Bill, as it deals with an evolved form of communication: electronic communications. Clause 19(2) in the Bill should also be deleted for the same reason.

The Chair requested the SLA to provide clarity on the first amendment proposed in Document A.

Mr Kellner replied that Clause 19(2) of the Bill should be retained as it accommodates any future laws that might require written confirmation or communication. The other alternative would be to delete the reference to "in writing" in Clause 52(3).

The Chair noted that Members agree to the clause as amended by Document A, and It was also noted that the DP opposes the entire Chapter VIII.

Chapter IX: Protection of Critical Databases
Clause 53: Scope of critical database protection and Clause 54: Identification of critical data and critical databases
The tabled bill versions of these clauses were agreed to by Members.

Clause 55: Registration of critical databases
Ms Vos recommended that the phrase "excluding the disclosure of such database" should be inserted at the end of Clause 55(2)(c).

The Chair suggested that it should properly state "excluding the contents of such databases", so that the contents of such databases would be secured. The SLA is requested to comment on this matter.

Mr Kellner replied that this does succeed in excluding the actual contents of critical databases.

Mr Maziya recommended that the amendment proposed by Ms Vos be adopted.

The Chair noted that Members agreed to this clause, as amended by Ms Vos’ proposal.

Clause 56: Management of critical databases and Clause 57: Restrictions on disclosure of information
The tabled bill versions of these clauses were agreed to by Members.

Clause 58: Right of inspection
Ms Vos expressed her concern with the manner in which the issue of "reasonableness: is handled in Clause 58(2), especially in the private sector. In this regard the phrase "and must not require the disclosure of information contained in the database" should be incorporated here, as it does not seem necessary that the Director-General (DG) of the Department of Communications (the Department) needs to gain actual access into these databases. All that is required here is that the DG satisfy himself that the location of the database is certain, its security is ensured, its recovery plan is satisfactory etc. These concerns have nothing to do with the contents of the database.

The Chair requested the SLA to explain whether Clause 57 assumes that the contents of the critical database can be known, as far as Clause 57(2) is concerned.

Mr Kellner replied that Clause 57does not include this type of information.

The Chair requested clarity on the precise meaning of the term "compliance" in Clause 58(1).

Mr Kellner responded that it means compliance with everything in Chapter IX.

The Chair noted that only Clauses 55 and 56 are relevant to Clause 58, and thus the concerns raised earlier by Ms Smuts are covered here, and this provision does not require an amendment.

Mr Kellner stated that the DG would have to apply to court to gain access to these critical databases if they are refused access.

The Chair stated that Clause 55 clearly stipulates that this does not relate to the contents of the critical databases.

Ms Vos agreed that it clearly states that the DG is not allowed access to these databases.

Mr Maziya inquired as to the position should the cyber inspectors be informed that a certain critical database contains terrorist propaganda, if the cyber inspectors are required to approach a magistrate as the first port of call, this would ultimately render the cyber inspectors "toothless".

The Chair contended that in this situation the Interception and Monitoring Bill would be used to acquire the proper authorisation from the court to proceed.

Mr Kellner stated that Clause 86 of the Bill requires the cyber inspectors to secure a warrant before proceeding.

The Chair noted that Members agreed to the tabled bill version of Clause 58.

Clause 59: Non-compliance with Chapter
The Chair noted that Members agreed to the tabled bill version of Clause 59.

Chapter X: Domain Name Authority and Administration
The Chair drew the Members attention to the two Internet Corporation for Assigned Names and Numbers (ICANN) documents being circulated, as these are important to any discussion on Chapter X.

The document entitled "Draft Prepared by State Law Advisors: Chapter X" (the redraft) would now form the basis of the discussion on this chapter. The effect is thus that the current Chapter X in the Bill is deleted.

Clause 60: Establishment of Authority
Mr Maziya suggested that the phrase "and all relevant authorities to be considered" be added at the end of Clause 60.

Ms Smuts requested clarity on the intention behind this amendment.

Mr Maziya responded that this would allow this process to be communicated to institutions such as ICANN, Governmental Advisory Committee (GAC) etc, from the day the authority becomes operational, so that they can be made aware of the transitional period in the .za domain name.

Ms Smuts contended that it is not appropriate for this to be expressly stipulated in law, but should rather be the responsibility of the administrator. The intention behind the amendment is however laudable.

Mr Kellner suggested that the phrase " and by advising all relevant authorities" be added instead.

Mr Maziya approved of this formulation.

The Chair noted that Members agreed to Clause 60 in the redraft, as amended by Mr Maziya’s proposal.

Clause 61: Incorporation of Authority
Mr Maziya suggested that the phrase "shall/must delegate a person who, together with Namespace ZA" be inserted to replace "and the members of Namespace ZA" in Clause 61(3) of the redraft.

Mr Kellner proposed that the phrase "a representative of the Minister and" be inserted instead, to replace "the Minister" in that sub clause.

Ms Smuts stated that she welcomed the introduction of Sub clause 2 by the redraft, but suggested that a small administrative fee should be included to cover the administrative costs in this regard.

Mr Calvin Browne, from Uniforum SA, informed Ms Smuts that, as a director of a Section 21 company, "the last thing to do" is to hamper the administration of the company so that it would be unable to deal with its members, should their numbers reach millions. A nominal fee would probably be acceptable.

Mr Maziya requested clarity on the current composition of the board of the Authority.

The Chair stated that this could not be entertained at this stage of the proceedings due to time constraints. The SLA is requested to advise the Committee on replacing the phrase "any fee" with "a nominal fee" in Clause 61(2).

Mr Kellner suggested that a fee requirement might deter possible members from registering. The final decision in this regard rests with this Committee.

The Chair requested the SLA to consider this.

Mr Kellner suggested the insertion of the phrase "and payment of a nominal fee to cover the cost of registration of membership" after the word "application" in Clause 61(2).

The Chair noted that members agreed with Clause 61 of the redraft, as amended by this insertion.

Clause 62: Authority’s memorandum and articles of association
Mr Maziya called for the phrase "for approval by the Minister" to be removed from Clause 62(4)(f).

Ms Smuts suggested that the phrase ", which consent shall not be unreasonably withheld" be added at the end of Clause 62(2). Furthermore, Clause 62(4)(h) should be deleted as it contradicts Clause 62(4)(e), and the latter provides a "quick and easy" procedure whereas the former is bureaucratic.

Mr Kellner suggested that some would not co-opt under Clause 62(4)(e) unless they are paid.

The Chair noted that the Committee agrees to Clause 62 in the redraft, as amended.

Clause 63: Board of directors of Authority
Ms Smuts raised concern with the election process in this clause, and suggested that perhaps the Namespace ZA proposal should be adopted here. It recommends that the Board consist of sixteen members, with six elected directly by existing members and the rest via a public process via this Portfolio Committee.

Mr Maziya stated that the ANC opposes this proposed amendment.

Ms Smuts suggested that the phrase "in consultation with the Administrator and the Registrar" be added after the word "Minister" in Clause 63(2)(a). Alternatively, "The Minister" should be replaced with the phrase "Members of the Authority as described in Clause 61(3)".

Mr Maziya disagreed and recommended that Clause 63 remain as is currently contained in the redraft.

Ms Vos agreed with the amendments proposed by Ms Smuts.

The Chair contended that Ms Smuts’ proposal contains a conflict of interests, as the members themselves would then be responsible for the election. This concern was raised by various submissions received during the public hearings stage.

Mr Browne suggested that the phrase "ordinary members" be replaced with the word "directors" in Clause 63(1).

Mr Kellner agreed with this proposal.

Mr Maziya and Mr M Lekgoro (ANC) suggested instead that the provision reflect that the board shall consist of "nine directors, one of whom is the chairperson", because the chairperson is also a director of that company.

Mr Kellner agreed with this formulation.

The Chair approved.

Ms Smuts suggested that the word "nine" be inserted before "persons" in Clause 63(1)(d), and the phrase "the person recommended by the panel to the board" or "or may request the panel to reconsider and make a new recommendation" should be inserted in Clause 63(1)(e), to allow some leeway in that process.

Mr Kellner stated that the inclusion of "nine" would effectively provide the Minister with no other alternative but to make appointments from only the "nine" persons recommended, even though she could have received a limitless amount of recommendations from the panel. The second proposal does not have to be expressly included in Clause 63(1)(e), because the Minister must appoint only nine persons.

Mr Maziya contended that Ms Smuts’ proposal creates a problem should the nine recommended persons not be properly representative of a broad spectrum of South Africa, and the Bill does not clearly provide what the Minister is to do in this situation.

Ms Smuts replied that the solution would be to insert both her proposals into Clause 63(1)(e), so as to provide the Minister with a degree of leeway in this regard.

The Chair suggested that the two proposals be separated to read "if the Minister is not satisfied with the recommendations of the panel as contemplated in Sub clause (3), she may request the panel to make new recommendations".

A representative from the Department of Communications (the Department) informed the Committee that an identical provision is contained in Section 34 of the Telecommunications Act, as passed by this Committee during 2001.

Mr Maziya suggested that the word "science" be inserted before "Technology " in Clause 63(3)(b)(iii).

The Chair noted that the Committee agrees to Clause 63 in the redraft, as amended by Members.

Clause 64: Staff of Authority
The Chair noted that Members agreed to the version of this clause as contained in the redraft.

Clause 65: Licensing of registrars and registries
Mr Barrett suggested that the current definition of "sub-domain" in the Bill is framed too broadly, as it is not necessary to require the Authority to license "that deep". It was thus recommended that the word "second level" be added after the phrase "administer a" in Clause 65(1).

Ms Smuts inquired whether it is appropriate for the Authority to issue licenses here.

Mr Browne replied that licenses grant more rights and obligations than a simple delegation, such as property rights, and is thus not appropriate with respect to domain names.

Mr Kellner stated that the terms "license" or "authorise" could be used interchangeably here, as they have the same meaning.

A member from the Department agreed with Mr Kellner.

The Chair suggested that the word "authorise" be used, as an authorisation can be withdrawn.

Mr Kellner stated further that the one does not grant more rights than the other, unless this is described fully in the licensing agreement as conferring more rights on the licensee.

The Chair suggested that the provision remain as it currently stands in the redraft, and noted that Members agree, subject to the inclusion of the proposal by Mr Barrett.

Clause 66: Functions of Authority
Ms Smuts reminded Members that Namespace ZA had clearly expressed that it is not comfortable with this clause, and suggested that the rest of Clause 86(1)(b) after the phrase "comply with" be deleted and replaced with "international standards". Thus the reference to ICANN should be removed, as they suggest.

Mr Browne added that the reason for this proposal is that ICANN’s procedures are not always reasonable, and Clause 65(1)(b) in the redraft compels South African administrators to use the ICANN dispute resolution policy which is not appropriate, as the latter already have their own dispute resolution procedure in place.

Mr Barrett added that the document entitled "ICANN President’s Report" itself clearly states that ICANN is an experiment, and it could very well prove to be unsuccessful. Thus the South African administrators should be allowed to "switch support" from one authority to another, should any new and improved models crop up.

Mr Kellner suggested that phrase "international standards in the administration of the .za domain name space" be inserted instead.

Mr Browne stated that different Country Code Top Level Domains (ccTLD) employ different standards, and it is therefore preferable to use "international best practise" rather than the hard-and-fast rules of "international standards".

Mr Kellner that this can be included in Clause 66(1)(b), as this phrase is currently contained in various finance laws.

Mr Maziya agreed to the proposed amendment.

Ms smuts requested clarity on the use of the term "policy directives" in Clause 66(1)(e), and recommended that the word "directives" be deleted.

The Chair noted that Ms Smuts’ amendment was not carried, and that Members agreed to Clause 66 in the redraft, as amended by Members.

Clause 67: Finances of Authority
Mr Browne suggested that perhaps the CEO and accounting officer of the Authority should be two separate persons in Clause 67(3), as this would afford flexibility, whereas the current formulation in the redraft forces the CEO to be the accounting officer as well.

Mr Maziya informed Mr Browne that the CEO accounts to the Board of the Authority, and the Board in turn accounts to the Minister and Parliament.

The Chair suggested that it be left to the Board to decide on the qualities of the CEO.

Mr Browne contended that Clause 67(2) should be deleted.

Mr Kellner and a representative from the Department agreed with this proposal.

The Chair noted that Members agreed to Clause 67 in the redraft, as amended by Members.

Clause 68: Reports
The Chair stated that it has to be added in this clause that the report must be tabled in Parliament, as this is a standard clause used in various pieces of legislation. It was noted that Members agree to Clause 68 as contained in the redraft, as amended by this insertion.

Clause 69: Regulations regarding Authority
Mr Maziya stated that he was not satisfied with the first line of this clause, as the phrase "with the approval of the Minister" seems to contradict the power originally granted to the Authority via the word "may".

Mr Lekgoro added that this provision does not make it clear whether it means that the Authority has to make regulations which the Minister later has to approve, or whether the Authority first has to acquire the approval of the Minister to make regulations.

Mr Kellner stated that this clause provides that the Authority cannot make regulations until it receives approval from the Minister. This is a standard clause employed in several laws.

A representative from the Department informed Members that an identical provision is contained in the Telecommunications Act regarding the similar relationship between the Independent Communications Authority of South Africa (ICASA) and the Minister.

Ms Smuts contended that the problem with this situation in the Telecommunications Act is that the Minister is not approving the regulations made by ICASA, with the result that unnecessary complications are constantly arising. Furthermore, it has to be remembered that Namespace ZA is not a regulatory body, but is rather a Section 21 company.

The Chair noted that Members agreed to Clause 69 in the redraft, and It was also noted that the DP opposes this clause.

Clause 70: Alternative Dispute Resolution
The Chair noted that the Committee agrees to the version of Clause 70 as currently contained in the redraft.

Clauses 60 to 73 of the Bill are thus deleted, and replaced by Clauses 60 to 70 of the redraft, as amended. It was noted that Members agree, and the opposition to this by the DP is noted.

Chapter XI: Limitation of Liability of Service Providers
Clauses 74-80
It was decided in a previous session that these clauses would remain as currently contained in the Bill.

Clause 81: Information location tools; Clause 82: No general obligation to monitor and Clause 83: Savings
These clauses were accepted, as amended by Document A.

Chapter XII: Cyber Inspectors
Chapter 84: Appointment of cyber inspectors
The version of this clause as currently contained in the Bill was accepted by Members.

Clause 85: Powers of cyber inspectors
The Chair noted that Members agreed to the tabled bill version of Clause 85. It was also noted that the DP opposes this clause.

Clause 86: Power to inspect, search and seize
The tabled bill version of this clause was accepted by Members.

Clause 87: Obtaining warrant
This clause was accepted, as amended by Document A.

Clause 88: Preservation of confidentiality
The Chair noted that Members agreed to the tabled bill version of Clause 88.

Chapter XIII: Cyber Crime
Clause 89: Definition
The tabled bill version of this clause was accepted by Members.

Clause 90: Unauthorised access to, interception of or interference with data
This clause was accepted by Members, as amended by Document A.

Clause 91: Computer-related extortion, fraud and forgery and Clause 92: Attempt, and aiding and abetting
Members agreed to the tabled bill versions of these clauses.

Clause 93: Penalties
This clause was accepted by Members, as amended by Document A.

Chapter XIV: General Provisions
Clause 94: Jurisdiction of courts
Members agreed to the tabled bill version of this clause.

Clause 95: Saving of common law
The new Clause 95, as contained in Document A, was adopted by Members.

Clause 96: Limitation of liability
Members agreed to the tabled bill version of these clauses. It was also noted that the DP opposes the wording of this clause.

Clause 97: Regulations and Clause 98: Short title and commencement
Members agreed to the tabled bill versions of these clauses.

Schedules 1 and 2
Members agreed to the tabled bill version of these schedules.

Ms Smuts informed the Chair that the South African Law Commission (the SALC) has requested that this Committee state in its Report that the SALC should resume its work on the issues of cyber crime and evidence.

The Chair concluded deliberations on the Bill by declaring the Report of the Committee:
"The Portfolio Committee on Communication, having considered the subject of Electronic Communications and Transactions Bill [B8-2002], National Assembly section 75 referred to it and classified by the Joint Technical Mechanism as a section 75 Bill, reports the Bill with amendments [B8A-2002], signed by myself on the committee members’ behalf on 3 June 2002. In addition, the Committee has asked that the South African Law Commission continue its work on the issues of cyber crime and evidence, as it was originally mandated to perform."

There were no further questions or comments and the meeting was adjourned at 12:05 am.

Appendix 1

PORTFOLIO COMMITTEE AMENDMENTS TO ELECTRONICS COMMUNICATIONS AND
TRANSACTIONS BILL
[B 8-2002]

PREPARED BY THE STATE LAW ADVISERS
REPUBLIC OF SOUTH AFRICA

(As agreed to by the Portfolio Committee on Communications)AMENDMENTS AGREED TO ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL
[B8 - 2002]

CLAUSE 2
1. On page 9, in line 32, after "electronic" to insert "communications and"

2. On page 9, in line 34, after "economy" to omit "to" and insert "for"

3. On page 9, in line 36, after "access" to insert "primarily in underserviced areas"

4. On page 9, in line 39, after "electronic" to insert "communications and"

5. On page 9, in line 40, after "electronic" to insert "communications and"

6. On page 9, in line 41, after "electronic" to insert "communications and"

7. On page 9, in line 43, after "electronic" to insert "communications and"

8. On page 9, in line 44, after "bodies" to omit "and"

9. On page 9, in line 44, after "institutions" to insert "and citizens"

10. On page 9, in line 56, after "accepted" to insert "International"

11. On page 9, in line 57, after "electronic" to insert "communications and"

CLAUSE 4
1.On page 10, after line 20, to add the following subdause:
(5) This Act does not limit the operation of any law that expressly authorises, prohibits or regulates the use of data messages, including any requirement by or under a law for information to be posted or displayed in a specified manner, or for any information or document to be transmitted by a specified method.

CLAUSE 5
1. On page 10, in line 27, after "a" to omit "five" and to insert "three".

2. On page 10, in line 35, after "roles" to omit "and obligations"

3. On page 11, after line 40, to add the following subdause:
(11) The Minister must table an annual report in Parliament regarding the progress made in the implementation of the national e-strategy.

CLAUSE 10
1. On page 13, after line 5, to omit subclause (4) and to substitute the following subclause:

(4) In implementing this Chapter, the Minister must encourage the development of innovative information systems and the growth of related industry.

CLAUSE 11
1. On page 13, from line 18, to omit sublause (3).

CLAUSE 13
1. On page 13, in line 32, after "law" to insert, "and such law does not specify the type of signature"

2. On page 13, in line 47, to omit subdause (5), and to substitute the following subclause:
(5) Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that-
(a) it is in the form of a data message; or
(b) it is not evidenced by an electronic signature but is evidenced by other means from which such person's intent or other statement can be inferred.

CLAUSE 15
1.On page 14, after line 28, to add the following subclause:
(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

CLAUSE 18
1.On page 15, after line 10, to add the following subdause:
(3) Where a law requires or permits a person to provide a certified copy of a document and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true copy thereof and the certification is confirmed by the use of an advanced electronic signature.

CLAUSE 19
1.On page 15, after line 19, to add the following subdause:
(3) Where a seal is required by law to be affixed to a document and such law does not prescribe the method or form by which such document may be sealed by electronic means, that requirement is met if the document indicates that it is required to be under seal and it includes the advanced electronic signature of the person by whom it is required to be sealed.

CLAUSE 20
1. Clause rejected.

CLAUSE 21
1. On page 15, from line 31, to omit subclauses (c), (d) and (e).

CLAUSE 24
1. On page 16, in line 24 after "business" to insert "or residence".

2. On page 16, in line 25, after "business" to insert "or residence".

CLAUSE 26
1. On page 16, in line 39, after "automatically" to insert "unless it is proved that the information sysTem did not properly execute such programming".

CLAUSE 29
1. On page 17, in line 24, after "message', to add "or that such authentication service provider must be a preferred authentication service provider"

2. On page 17, after line 27, to add the following subclause:
(2) For the purposes of subsection (1)(d) the South African Post Office Limited is a preferred authentication service provider and the Minister may designate any other authentication service provider as a preferred authentication service provider based on such authentication service provider's obligations in respect of the provision of universal access.

CLAUSE 34
1. On page 18, in line 32, before "Authority" to insert "Accreditation".

CLAUSE 35
1. On page 18, in line 33, in the heading after "of" to insert "Accreditation".

2. On page 18, in line 35, before "Authority" to insert "Accreditation".

3. On page 18, in line 36, after "The" to insert "Accreditation".

4. On page 18, in line 36, after "Deputy" to insert "Accreditation".

CLAUSE 37
1. On page 18, in line 41, in the heading, after "of" to insert "Accreditation".

2. On page 18, in line 42, after "The" to insert "Accreditation".

3. On page 19, in line 4, after "The" to insert "Accreditation".

CLAUSE 38
1. On page 19, in line 12, after "The" to insert "Accreditation".

2. On page 19, in line 15, before "Authority" to insert "Accreditation".

3. On page 19, in line 18, after "the" to insert "Accreditation".

CLAUSE 39
1. On page 19, in line 21, after "The" to insert "Accreditation".

2. On page 19, in line 22, before "Authority" to insert "Accreditation".

3. On page 19, after line 29, to insert:

(e) is based on the face-to-face identification of the user.

4. On page 19, in line 30, before "Authority" to insert "Accreditation".

5. On page 19, in line 49, after "the" to insert "Accreditation".

6. On page 20, in line 5, after "The" to insert "Accreditation".

CLAUSE 40
1. On page 20, in line 8, after "The" to insert "Accreditation".

2. On page 20, in line 12, before "Authority" to insert "Accreditation".

3. On page 20, in line 21, after "The" to insert "Accreditation".

CLAUSE 42
1. On page 20, in line 41, after "the" to insert "Accreditation".

CLAUSE 52
1. On page 23, in line 22, to omit "in writing".

CLAUSE 81
1. On page 32, after line 33, to omit paragraph (i) and to insert the following new subdauses:
(2) Any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for damages for wrongful takedown.
(3) A service provider is not liable for wrongful take down in response to a notification.

CLAUSE 82
1. On page 32, in line 38, after "no" to omit "a".

CLAUSE 83
1. On page 32, in line 54, to omit"." and to insert"; and".
2. On page 32, after line 54, to insert the following new paragraph:
(d) any right to limitation of liability based on the common law or the Constitution.

CLAUSE 87
1. On page 34, in line 33, after "any" to omit "court" and to insert "magistrate or judge".

2. On page 34, in line 36, after "a" to omit "court" and to insert "magistrate or judge"

CLAUSE 90
1. On page 35, in line 20, after "program"to insert "or a component".

CLAUSE 93
1. On page 35, in line 47, after "sections" to omit "33(2)" and to insert "38(3)".

NEW CLAUSE
That the following be a new clause to follow on clause 95:

Repeal of Act 57 of 1983

96. The Computer Evidence Act, 1983 is hereby repealed.

Appendix 2
CHAPTER X
DOMAIN NAME AUTHORITY AND ADMINISTRATION
DRAFT PREPARED BY STATE LAW ADVISERS
 

Part 1
Establishment and incorporation of .za domain name authority

Establishment of Authority
60. A juristic person to be known as the za domain authority is hereby established for the purpose of assuming responsibility for the .za domain name space as from a date determined by the Minister by notice in the Gazette
.
Incorporation of Authority
61. (1) The Minister must, within 12 months of the date of commencement of this Act, take all steps necessary for the incorporation of the Authority as a company contemplated in section 21(1) of the Companies Act, 1973 (Act No.61 of 1973).

(2) All citizens and permanent residents of the Republic are eligible for membership of the Authority and must be registered as members upon application without having to pay any fee or comply with any formality.

(3) For the purpose of incorporation of the Authority the Minister and the members of Namespace ZA as at the date of application for incorporation must be deemed to be members of the Authority.

Authority's memorandum and articles of association
62. (1) The memorandum of association and articles of association of the Authority must be consistent with this Chapter and, except where this Chapter provides to the contrary, also with the Companies Act, 1973 (Act No.61 of 1973).

(2) Notwithstanding the Companies Act, 1973, an amendment to the memorandum of association or articles of association affecting any arrangement made by any provision of this Chapter, does not have any legal force and effect unless the Minister has consented in writing to such an amendment.

(3) No fee is payable in terms of the Companies Act, 1973, in respect of the reservation of the name of the company, the registration of the said memorandum and articles and the issue of the certificate to commence business.

(4) The memorandum and articles of association of the Authority must, amongst others, provide for-
(a) the rules for the convening and conducting of meetings of the Board, including the quorum required for and the minutes to be kept of those meetings;
(b) the manner in which decisions are to be made;

(c)) the establishment of any division of the Authority to perform specialized functions;

(d) the establishment and functioning of committees, including a management committee;

(e) the co-opting by the Board or a committee of any person to assist the Authority or committee in the consideration of any particular matter;
(f) the preparation by the Board, for approval by the Minister, of an annual business plan in terms of which the activities of the Authority are planned annually;
(g) the banking and investment of funds by the Board;
(h) provisions to regulate the manner in which, and procedures whereby, expertise from any person is obtained in order to further the objects of the Authority;
(i) the determination through arbitration of any dispute concerning the interpretation of the memorandum and articles of association of the Authority; and
(j) the delegation of powers and assignment of duties to directors, committees and employees:

Provided that the Board may-
(i) not be divested of any power or duty by virtue of the delegation or assignment; and
(ii) vary or set aside any decision made under any delegation or in terms of any assignment;

(k) the procedures and criteria for the establishment and disestablishment of second level domains and for delegations to such domains;

(I) Appeal mechanisms;

(m) the tenure of directors;

(n) the circumstances under and the manner in which a directorship is terminated;

(o) criteria for the disqualification of directors;

(p) the method of determining the allowances to be paid to directors for atlending meetings;

(q) the powers and duties of directors.

Part 2
Governance and staffing of authority
Board of directors of Authority

63. (1) The Authority is managed and controlled by a Board of Directors consisting of eight ordinary members, and the chairperson.

(2) The process of appointment is the following:

(a) The Minister must appoint an independent selection panel consisting of five persons, who command public respect for their fair-mindedness, wisdom and understanding of issues concerning the Internet, culture, language, academia and business, the names of whom must be placed in a notice in the Gazette;

(b) the Minister must invite nominations for members of the Board from the public through newspapers which have general circulation throughout the Republic, on line news services, radio and by notice in the Gazette;

(c) nominations must be made to the panel established in terms of paragraph (a);

(d) the panel must recommend to the Minister names of persons to be appointed to the Board taking into account the sectors of stakeholders listed in subsection (3)(b);

(e) the Minister must appoint the members of the Board, and publish the names of those appointed in the Gazette;

(f) the Minister must appoint the Chairperson of the Board from among the names recommended by the panel.
(3) (a) The Board, when viewed collectively, must be broadly representative of
the demographics of the country including, with regard to gender and disability.

(b) Sectors of stakeholders contemplated in subsection (2)(d) are

(i) The existing Domain Name community;

(ii) Academic and legal sectors;

(iii) Technology and engineering sectors;

(iv) Labour;
(v) Business and the private sector;
(vi) Culture and language;
(vii) Public sector;
(viii) Internet user community.

(4) Directors must be persons who are committed to fairness, openness and accountability and to the objects of this Act.
(5) All directors serve in a part-time and non-executive capacity.
(6) Any vacancy on the Board must be filled in accordance with subsections (2) and
(3).

Staff of Authority
64. (1) The chief executive officer of the Authority appointed by the Board must perform
any work incidental to the functions of the Authority.
(2) The chief executive officer must be assisted by staff appointed by the Board.
(3) The Board must determine the conditions of service, remuneration and service benefits of the chief executive officer and the staff.

(4) If the chief executive officer is for any reason unable to perform his or her functions, the Board may designate a person in the service of the Authority to act as the acting chief executive officer until the chief executive officer is able to resume office.

Part 3
Functions of Authority
Licensing of registrars and registries
65. (1) No person may update a repository or administer a sub-domain unless such person is licensed to do so by the Authority.
(2) An application to be licensed as a registrar or registry must be made in the prescribed manner and subject to the prescribed fees.
(3) The Authority must apply the prescribed conditions and criteria when evaluating an application referred to in subsection (2).

Functions of Authority
66. (1) The Authority must-

(a) administer and manage the .za domain name space;

(b) comply with the requirements for administration of the .za domain name space as provided for by ICANN, its successors or assigns;

(c) license and regulate registries;

(d) license and regulate registrars for the respective registries; and

(e) publish guidelines on-

(i) the general administration and management of the za domain name space;
(ii) the requirements and procedures for domain name registration; and
(iii) the maintenance of and public access to a repository, with due regard to the policy directives which the Minister may make from time to time by notice in the Gazette.

(2)The Authority must enhance public awareness on the economic and commercial
benefits of domain name registration.

(3) The Authority-

(a) may conduct such investigations as it may consider necessary;

(b) must conduct research into and keep abreast of developments in the Republic and elsewhere on the domain name system;

(c) must continually survey and evaluate the extent to which the za domain name space meets the needs of the citizens of the Republic; and

(d) may, from time to time, issue information on the registration of domain names in the Republic.

(4) The Authority may, and must when so requested by the Minister, make recommendations to the Minister in relation to policy on any matter relating to the .za domain name space.

(5) The Authority must continually evaluate the effectiveness of this Act and things done in terms thereof towards the management of the .za domain name space.

(6) The Authority may-
(a) liaise, consult and co-operate with any person or other authority; and
(b) appoint experts and other consultants on such conditions as the Authority may determine.

(7) The Authority must respect and uphold the vested rights and interests of parties that were actively involved in the management and administration of the za domain name space at the date of its establishment: Provided that-

(a) such parties must be granted a period of six months during which they may continue to operate in respect of their existing delegated sub-domains;

(b) after the expiry of the six month period, such parties must duly apply to be licensed registrars and registries as provided for in this Part.

Part 4
Finances and reporting
Finances of Authority

67. (1) All money received by the Authority must be deposited in a banking account in the name of the Authority with a bank established under the Banks Act, 1990 (Act No.94 of 1990), or a mutual bank established under the Mutual Banks Act, 1993 (Act No.124 of 1993).
(2) The financial year of the Authority begins on 1 July and ends on 30 June of the following year.
(3) The chief executive officer is the accounting officer of the Authority and must ensure that-
(a) proper record of all the financial transactions, assets and liabilities of the Authority are kept; and
(b) as soon as possible, but not later than three months after the end of a financial year, accounts reflecting the income and expenditure of the Authority and a balance sheet of the assets and liabilities of the Authority as at the end of that financial year are prepared and submitted to the Board and Minister.

(4) The Authority is funded from-
(a) the capital invested in or lent to the Authority;

(b) money appropriated by Parliament for that purpose;

(c) income derived from the sale or other commercial exploitation of its licenses, approvals, products, technology, services or expertise in terms of this Act;

(d) loans raised by the Authority;

(e) the proceeds of any sale of assets;

(f) income or interest earned on the Authority's cash balances or on money invested by it; and

(g) money received by way of grant, contribution, donation or inheritance from any source inside or outside the Republic.

(5) The funds of the Authority, must be utilised to meet the expenditure incurred by the Authority in connection with its functioning, business and operations in terms of this Act.
(6) (a) The money may be so utilised only as provided for in a statement of the


Authority's estimated income and expenditure contemplated in subsection (4), that has been approved by the Minister.

(b) Money received by way of grant, contribution, donation or inheritance in terms of subsection (4)(g), must be utilised in accordance with any conditions imposed by the grantor, contributor, donor or testator concerned.
(7) (a) The Board must in each financial year, at a time determined by the

Minister, submit to the Minister for approval a statement of the Authority's estimated income and expenditure for the next financial year.

(b) The Board may at any time during the course of a financial year, submit a supplementary statement of estimated income and expenditure of the Authority for that financial year, to the Minister for approval.

(c) The Minister may grant the approval of the statement referred to in paragraph (a) with the agreement of the Minister of Finance.

(d) The Authority may not incur any expenditure in excess of the total amount approved under paragraph (c).

(8) The Board may establish a reserve fund for any purpose that is connected with the Authority's functions under this Act and has been approved by the Minster, and may allocate to the reserve fund the money that may be made available for the purposes in the statement of estimated income and expenditure or supplementary statement contemplated in subsection (7).

(9) To the extent that the Authority is provided with start-up capital by the State, the

Authority may, at the election of the Minister of Finance, be made subject to the Public Finance

Management Act, (Act No.1 of 1999), until such time as the Authority, to the satisfaction of the Minister of

Finance, becomes self sustaining through the alternative sources of revenue provided for in subsection (4).

Reports
68. As soon as practicable after the end of every financial year, the Board must submit a report on its activities during that year to the Minister.

Part 5
Regulations
Regulations regarding Authority
69 The Authority may, with the approval of the Minister, make regulations regarding-
(a) the requirements which registries and registrars must meet in order to be licensed, including
objective standards relating to operational accuracy, stability, robustness and efficiency;
(b) the circumstances and manner in which registrations may be assigned, registered, renewed,refused, or revoked by the registries with due regard to the express recognition of the right of groups and members of groups within the Republic to identify with, use or communicate cultural, linguistic, geographical, indigenous or any other expressions of heritage including any visual or audible elements or attributes thereof;
(c) pricing policy;
(d) provisions for the restoration of a domain name registration and penalties for late payments;
(e) the terms of the domain name registration agreement which registries and registrars must adopt and use in registering domain names, including issues in respect of privacy, consumer protection and alternative dispute resolution;
(f) processes and procedures to avoid unfair and anti-competitive practices, including bias to, or preferential treatment of actual or prospective registrants, registries or registrars, protocols or products;
(g) requirements to ensure that each domain name contains an administrative and technical contact;
(h) the creation of new sub-domains;
(i) procedures for ensuring monitoring of compliance with the provisions of this Act and the
regulations provided for in this Chapter, including regular .za domain name space technical audits;
(j) such other matters relating to the .za domain name space as it may be necessary to prescribe to achieve the objectives of this Chapter; and
(k) policy to be applied by the Authority.

Part 6
Alternative dispute resolution

Alternative dispute resolution
70. (1) The Minister, in consultation with the Minister for Trade and Industry, must make regulations for an alternative mechanism for the resolution of disputes in respect of the .za domain name space.
(2) The regulations must be made with due regard to existing international precedent.
(3) The regulations may prescribe-
(a) procedures for the resolution of certain types of disputes determined in the regulations and which relate to a domain name registration;
(b) the role which the Authority must fulfil in administering the dispute resolution procedure;
(c) the appointment, role and function of dispute resolution adjudicators;
(d) the procedure and rules which must be followed in adjudicating disputes;
(e) unlawful actions or activities in respect of domain names, distinguishing between criminal and civil liability;
(f) measures to prevent unlawful actions or activities with respect to domain names;
(g) the manner, costs of and time within which a determination must be made;
(h) the implementation of determinations made in terms of the dispute resolution procedure;
(j) the limitation of liability of registrars and registries for implementing a determination; and (() the enforcement and publication of determinations.

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