Many of the provisions facilitate transactions and documentation by electronic means.

For example, documents that are required by law to be in writing will be acceptable if they are in an accessible electronic form. Agreements relating to the sale of immovable property, wills and bills of exchange are excluded from these provisions and will still have to be written and executed on paper.

The bill provides that an expression of intent or other statement may have legal force and effect if it is in electronic form. In addition, an agreement may be concluded partly or wholly by means of data messages.

A consequence of these provisions is that people will have to become more careful of what they send by email because it may have legally enforceable consequences.

It will be possible for affidavits to be made under oath electronically and documents to be certified or notarised electronically.

The bill also allows for public bodies to accept the filing of documents electronically and to issue permits, licences and approvals electronically.

Where the law requires documents to be retained, it will be permissible to retain such documents in an accessible and accurate electronic form. Positive effects of this provision will be a reduction in storage costs.

A document required by law to be signed, may be signed electronically by means of an advanced electronic signature. A potential difficulty with this provision is that the electronic signature of a person overseas will have to be a signature that results from a process that is accredited in SA.

However, this provision relates only to documents that are required by law to be signed and it does not affect other transactions such as electronic agreements in terms of which the parties will be able to choose the type of electronic signature they wish to use.

The bill clarifies the law relating to automated transactions, so that a valid agreement will be formed where an electronic agent performs an action required by law for an agreement.

However, there are certain consumer protection provisions that apply only to such automated transactions, and parties to automated transactions would be well advised to be aware of them.

Chapter XI of the bill clarifies questions relating to the liability of internet service providers and other intermediaries, for the transmission or storage of information which is unlawful or infringes the rights of others.

Such service providers will not be liable for the transmission, routing or storage of e-mail and data messages sent by other persons.

Such service providers will not be liable for hosting unlawful or infringing content on websites at the request of their clients, provided the service provider has no knowledge of that unlawful content.

However, service providers are required to remove or disable access to content that infringes the rights of another person after being informed of such infringement. The bill also provides that internet service providers have no obligation to monitor the data that they transmit or store.

Kritsos is with Lisa Thornton Inc, a law firm for the ICT industries.

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