Case Notes: The Hall of Shame—Double Standards for Spam

• Jurisdiction: South Africa
• Pages: 688-705
• Citation: (2014) 26 SA Merc LJ 688
• Date: 16 August 2019
• Author: Tana Pistorius
• Published date: 16 August 2019

Case Notes

THE HALL OF SHAME — DOUBLE

STANDARDS FOR SPAM

TANA PISTORIUS*

Professor, Department of Mercantile Law, University of South Africa

SEM TLADI

†

Senior Lecturer, Department of Mercantile Law, University of South Africa

I INTRODUCTION

The f‌irst decision of a South African court dealing with spam has

revealed an industry practice as clear as dishwater. The Electronic

Communications and Transactions Act 25 of 2002 (‘the ECT Act’/‘the

Act’) came into operation on 31 July 2002. The objects of the Act are

among others to enable and facilitate electronic communications

and transactions in the public interest and to develop a safe, secure and

effective environment for consumers, business and government to

conduct and use electronic transactions.

1

The term ‘spam’ refers to unsolicited communications that are sent

bulk to electronic addresses. The issue of spam is dealt with in section 45

of the ECT Act, within the realm of consumer protection (chapter 8 of

the ECT Act). The regulation of spam is also addressed in the Consumer

Protection Act 68 of 2008 (‘the CPA’) and, more recently, in the

Protection of Personal Information Act 4 of 2013 (‘POPI’). The spam

provisions in the ECT Act, the CPA and POPI differ and industry

regulation of spam adds its own distinctive features.

Spam is also addressed in the code of conduct of Internet service

providers. An Internet service provider (ISP) is def‌ined as ‘any person

providing information system services’.

2

Information system services

are def‌ined to include:

* BA (Pret) LLB (Unisa) LLM LLD (Pret). Professor of Intellectual Property Law and

Information Technology Law, University of South Africa, Pretoria.

† Blur (Vista) LLB LLM (Pret). Senior Lecturer in the Law relating to Electronic

Communication, University of South Africa, Pretoria.

1

See s 2(j) of the ECT Act.

2

Section 70 of the ECT Act.

688

(2014) 26 SA Merc LJ 688

© Juta and Company (Pty) Ltd

‘the provision of connections, the operation of facilities for infor-

mation 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’.

3

Section 71 of the ECT Act provides for the recognition of an industry

representative body (IRB). The Minister (in this case of Telecommuni-

cations and Postal Services) may, on application by an industry repre-

sentative body for service providers, recognise such a body for the

purposes of section 72 by notice in the Gazette.

4

The Minister may only

recognise a representative body referred to in subsection (1) if the

Minister is satisf‌ied that: (a) its members are subject to a code of

conduct; (b) membership is subject to adequate criteria; (c) the code

of conduct requires continued adherence to adequate standards of

conduct; and (d) the representative body is capable of monitoring and

enforcing its code of conduct adequately.

5

The limitation of liability

established by this chapter

6

applies to an ISP only if it is a member of the

representative body referred to in section 71 and the service provider

had adopted and implemented the off‌icial code of conduct of that

representative body.

7

The ‘Guidelines for Recognition of Industry Representative Bodies of

Information System Providers’ (IRB Code) were promulgated in 2006.

8

The guidelines specify the minimum mandatory requirements that need

to be met by the IRB. The IRB Code refers to the ECT Act and gives

guidance as to what is considered international best practice and

professional conduct.

9

The following minimum requirements for a code of conduct are

contained in paragraph 5 of the IRB code: professional conduct;

10

content control;

11

consumer protection;

12

privacy and conf‌identiality

3

See s 1 of the ECT Act.

4

Section 71(1) of the ECT Act.

5

See s 71(2)(a)–(b) of the ECT Act.

6

Chapter XI (Limitation of Liability of Service Providers) of the ECT Act.

7

Section 72(1)(a)–(b) of the ECT Act.

8

The guidelines were published in GN 1283 in GG 29474 of 14 December 2006. For a

discussion and critique of these guidelines see Frans E Marx & Neil O’Brien ‘To regulate or to

over-regulate? Internet service provider liability: The Industry Representative Body in terms

of the ECT Act and Regulations’ (2011) Obiter 537.

9

See para 2.4 of the IRB Code.

10

Paragraph 5.1 of the IRB Code.

11

Paragraph 5.4 of the IRB Code.

12

Paragraph 5.5 of the IRB Code.

THE HALL OF SHAME — DOUBLE STANDARDS FOR SPAM 689

© Juta and Company (Pty) Ltd