From: Mustafa Akgul (akgul@Bilkent.EDU.TR)
Date: Thu 28 Jul 2005 - 13:04:14 EEST
ITWeb | The Technology News Site
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ICT law ?a balancing act'
By Damaria Senne
Posted: 27 July 2005
Delegates at the first day of an ICT law
conference in Johannesburg have heard that
meeting ICT law requirements is something of a
balancing act.
Legal experts say the interests of a company
must be weighed against the need to provide
information, while juggling practical
considerations which come into play when trying
to meet the requirements of various ICT laws.
They were addressing representatives of
government departments and companies at the
start of a three-day ICT law conference at the
Park Hyatt hotel yesterday. The conference was
organised by Marcusevans, with Leon Perlman,
head of telecoms law division at Michalsons
attorneys, chairing the event.
Balancing interests
In his presentation on consumer protection as
outlined by the Electronic Communications and
Transactions (ECT) Act, Jason Johnson, a legal
advisor with Nedbank, explained what
information should be made available to
consumers on company Web sites and highlighted
the consequences of failing to do so.
John Giles, a partner at Harty Rushmere
Attorneys, addressed the issues arising from
the Promotion of Access to Information Act
(PAIA). ??The act is all about balancing of
interests,'' he said.
A company should balance the customer's need
for information against whether disclosure will
harm the company, he said.
His advice to companies regarding the granting
of access was: ?If you are not sure, refuse
access?. The person or company requesting
information will then have to go to court ? an
expensive effort, which may be abandoned.
?The worst thing that can happen is that you
will be forced to grant access to information
that you did not want to,? he said.
Practical application of the law
For many of the delegates, the key issue was
how they could translate the legislation under
discussion into practical action.
??I think the best strategy for my company is
to scan our files and create an electronic
database of information that has been
categorised,'' said Lulama Mdlokovi, a delegate
from the Eastern Cape, during an informal
teatime discussion about PAIA. She said this
would allow them to access the information when
the need arose without having to ?look through
piles of boxes in the storage room.?
Mdlokovi acknowledged that the company would
have to initially outsource the job and spend
considerable resources.
?'We will, however, ensure that some of our
staff members are trained to do the job so that
we could continually update the database
ourselves.? Mdlokovi also suggested building
the storage information into her company's work
flow processes in order to keep their files up
to date.
Several government representatives said that
their departments needed expertise in this area
in order to execute projects.
?'My department needs expertise regarding the
collection and retention of electronic records
in order to successfully prosecute
transgressors,'' a representative from the
department of defence said, adding that they
had already lost a few cases due to an improper
collection of data.
The Convergence Bill debate
Also presenting at the event, SABC legal
advisor, Thamsaqa Kekana highlighted gaps in
the Convergence Bill in its current state.
Kekana also challenged the fact that there was
no White Paper or Green Paper process; and that
stakeholders were given only 30 days to make
their submissions. Consequently, the Bill is a
transplantation of the Malaysian experience and
that no market impact analysis was done, Kekana
said.
ICASA councillor Zolisa Masiza also addressed
Convergence Bill issues, with a special focus
on ICASA regulations, market focus and
controversy regarding the Bill.
?ICASA is ready for convergence,? he said. ?The
network operators are also ready.?
And the source of continued controversy? ?'It's
all about money,'' said Masiza.
According to Kekana, network operators are
protecting their income revenues. Some
operators claim they have not yet had the
opportunity to recoup the large amounts of
money invested in infrastructure.
Trends and other issues
The first day of the conference also included a
presentation by Carla Raffinetti of Edward
Nathan on technological advancements,
specifically voice over Internet protocol. Her
presentation included the legal impact of the
ministerial determinations; whether value added
networks should self-provide facilities; and
examining other areas that require regulatory
attention.
Wim Mostert of Mostert, Opperman Goodburn
Attorneys also re-visited the ECT Act,
specifically looking at record retention,
criminal provisions in the act, as well as the
legal admissibility and evidential weight of
electronic records.
The conference continues today.
