Author: Tsakani Stella Rikhotso

It is a principle of South African law that an employer can be held liable for a delict committed by its employee, as long as it can be shown that

1. The employee is in fact liable for the delict,
2. That an employer/employee relationship existed at the time the delict was committed and
3. The delict was committed by the employee “in the course and scope of his or her employment”.

This phrase refers to acts committed by the employee in the exercise of the functions to which he/she was appointed, including such acts as are reasonably necessary to carry out the employer’s instructions.

• While South African law recognises that the employer creates a risk that third parties may be harmed by its employees committing wrongful acts in the course of their duties and that it should be liable to compensate people who suffer harm when the risk materialises, the question posed above has not yet been tested in South African courts. The answer will depend on all of the facts and circumstances of the case. The enquiries will include an examination of the nature and content of the e-mail, the employee’s position, title, scope of responsibilities (and perhaps experience), and the nature of the employer (public or private company, close corporation or partnership). Most importantly one should consider whether the offending act was committed in pursuance of the execution of the employer’s business or whether the employee can be said to have engaged in a “frolic of his own”.

 

• It is important to remember that binding contracts can be concluded by e-mail and an employer could be bound to a contract entered into by the employee for and on behalf of the company if the employee was either authorised to conclude the contract or if the employee’s responsibilities typically included such activities.

 

• It is also important to remember that the contracting parties need not be human beings, as sale agreements are now commonly being concluded with “electronic agents” online.In addition, when entering into purchase and sale agreements online, it must be remembered that South African Reserve Bank (SARB) exchange controls apply to all residents in South Africa who wish to remit moneys abroad. This applies to payment in respect of goods purchased abroad. South African residents are also required to pay customs duties and VAT on any imported items when they are collected at the point of entry (which is usually the recipients’ local post office).

 

• E-mail can contain binding “admissions”, just as can regular mail or other documents. Again the determination will turn on authority and scope of employment. To avert this possibility, some companies have taken to suggesting that their employees draft fairly lengthy electronic “signatures” (which are affixed automatically to the end of all e-mail messages) that expressly disclaim the employee’s authority to act for or bind the employer.

 

• Even if the employee disclaims official connection with the employer (i.e. by stating that “the following are only my opinions, and do not reflect those of my employer”), can the reputation of the employer be adversely affected? Certainly. In most cases, e-mail from company-provided systems will contain routing information that identifies the company’s Internet “domain” (e.g. name-of-your-company.co.za).

 

• Aware of this possibility, some employees have taken to posting theirscurrilous messages using pseudonyms while trying to remain anonymous. Unfortunately, this is easier to contemplate than to accomplish. Traffic on the Internet is composed of “packets” which may be likened to postcards, carrying a message, an address, and a return address (these are called “IP addresses”).

 

• Every e-mail message and browser enquiry is conveyed over the Internet in “packet” format, and monitoring software can easily capture the IP address of the sender’s computer. Whether this IP address is sufficient to actually identify a specific individual depends on the sender’s computer configuration and local computer environment (e.g. a corporate intranet or LAN, or dial-up through an Internet service provider or online service provider).

 

• Again, where the sender uses a corporate direct connection to the Internet, his/her e-mail and browser requests will carry the corporation’s “.co.za” or “.com” imprimatur and will appear to observers to have come fromsomeone in the company. True anonymity is very difficult to attain.

From the above it should be apparent that employees need to be educated in the risks of sending e-mails or browsing the Internet. It often happens that they are horrified to learn that their every move leaves an audit trail (irrespective of whether or not anyone actually is monitoring their exchanges or later decides to review the system logs). After employees have been educated in these points they are much more likely to act with circumspection in their posting and surfing (both official and personal).

Note

• An organisation must have email policies in place so that employees will not misuse the service. Employees should not email confidential information about the company to anyone. If there are no policies in place, an employee can email sensitive and confidential information to friends of competitors- the company can lose its clients because of this act.

 

• Employees should not be allowed to visit and download information from some sites. Employees can unknowingly download viruses while downloading information from invalid sources. Viruses spread quickly in workplaces as employees exchange and use removable devices like memory sticks. Viruses can damage the system and destroy valuable information in an organisation.

While this Act does not deal specifically with the Internet, the definition of a “publication” is wide enough to include the Internet.

Although the provisions of this Act seek to regulate the distribution of films and publications (including pornography), one must interpret them having due regard to the fundamental rights to privacy and of freedom of expression which are protected in the Bill of Rights. See also chapters 12 and 13.

With regard to “hate speech”, the right to freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that causes incitement to cause harm. It must be noted that like pornography, it is only the distribution of such material which is an offence under the Act.

With regard to defamation by companies and employees of companies, one of the important issues is where the duty to regulate lies; whether there is a duty on the company or Internet service provider (ISP) to regulate the publication of material (whether it is by way of e-mail or a bulletin board on the company’s intranet) is a moot point. Unfortunately, this issue has not been decided in South Africa and companies that decide not to regulate and instead do nothing, could be exposing themselves to a possible claim for negligence on grounds that they owed a duty of care to their employees and third parties to impose some restrictions.

In so far as e-mail might be the medium for the defamatory statement in the workplace, it is important to remember that the defamation will probably occur at the place where the offending material is accessed. This might impact on defamatory e-mail received from a foreign jurisdiction, as a South African court will only have jurisdiction in South Africa if the words were published (accessed) in South Africa.

The following are some of the legislations that relate to use of emails.

1. Electronic Communications and Transactions Act, 2002

The overall objective of the Act is to enable and facilitate electronic transactions by creating legal certainty around transactions and communications conducted electronically. The Act seeks to address the following policy imperatives:

• bridging the digital divide by developing a national e-strategy for South Africa;
• ensuring legal recognition and functional equivalence between electronic and paper-based transactions;
• promoting public confidence and trust in electronic transactions; and
• providing supervision of certain service providers

1. A) Facilitating electronic transactions

Part 1 provides for the legal recognition of data messages and records. Electronic data will, subject to certain conditions, be permitted to be retained for statutory record retention purposes, will be regarded as being ‘‘in writing’’, and as a true copy of an ‘‘original’’ record, and provision is made for securing proper evidentiary weight of electronic evidence.

Part 2 deals with the rights and obligations that follow from the communication of data messages. The Act also provides for the validity of sending notices and other expressions of intent through data messages.

 

1. B)  Cyber inspectors

Chapter XII of the Act seeks to provide for the Department of Communications to appoint cyber inspectors. The cyber inspectors may monitor Internet web sites in the public domain and are granted powers of search and seizure of “information systems”, subject to obtaining a warrant. The Act’s definition of ‘‘information system’’ means a system for generating, sending, receiving, storing, displaying or otherwise processing data messages and includes the Internet;

Under Section 82 (1) A cyber inspector may, in the performance of his or her functions, at any reasonable time, without prior notice and on the authority of a warrant issued in terms of section 83(1), enter any premises or access an information system that has a bearing on an investigation

[Amongst other things] He is authorised to:

1. Search those premises or that information system;
2. Search any person on those premises if there are reasonable grounds for believing that the person has personal possession of an article, document or record that has a bearing on the investigation;
3. Take extracts from, or make copies of any book, document or record that is on or in the premises or in the information system and that has a bearing on the investigation;
4. Demand the production of and inspect relevant licenses and registration certificates as provided for in any law;
5. Inspect any facilities on the premises which are linked or associated with the information system and which have a bearing on the investigation;

A person who refuses to co-operate or hinders a person conducting a lawful search and seizure in terms of this section is guilty of an offence.

 

1. C) Unsolicited goods, services or communications

Unsolicited emails now have a legal definition and must meet certain requirements.

45(1): Any person who sends unsolicited commercial communications to consumers, must provide the consumer

(a) With the option to cancel his or her subscription to the mailing list of that person; and

(b) With the identifying particulars of the source from which that person obtained the consumer’s personal information, on request of the consumer.

 

(2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication.

 

(3) Any person who fails to comply with or contravenes subsection (1) is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

 

(4) Any person who sends unsolicited commercial communications to a person, who has advised the sender that such communications are unwelcome, is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

 

In responding to local spam you might find the following template message most useful in getting results.

 

1. D) Sending and receiving emails

The Act sets out rules to provide certainty about:

• when an electronic communication, such as an email or fax, is taken to have been sent and received, and
• where electronic communications are taken to have been sent and received

An email or other electronic communication is taken to have been sent at the time it first enters an information system outside the sender’s control. So if you have an email account with an Internet Service Provider (ISP), your email will be taken to have been sent when it first enters your ISP’s system. If you have a direct Internet connection, the email will be taken to have been sent when it first goes to the recipient’s ISP or their own mail server. An email or other electronic communication is taken to have been received:

• if the receiver has designated an information system for receiving emails, when the email first enters that information system, or
• in all other situations, when the email comes to the receiver’s attention

 

 

1. E) Information that must be in paper-based writing

Some communications or transactions that the law requires to be in writing cannot be in electronic form: they must still be on paper. For example:

• notices that are required to be given to the public
• information that is required to be given in writing either in person or by registered post
• wills, affidavits and powers of attorney
• cheques and other negotiable instruments, and bills of lading
• court documents
• documents to do with title to land
• various agreements or notices that are required to be in writing by consumer-protection laws, for example:

• • the “prepossession notice” that a finance company is required to give before it repossesses hire-purchase goods
  • the written agreement that a door-to-door salesperson is required to give

• consent by a psychiatric patient to brain surgery
• search warrants

• Email has become one of the driving forces behind connecting businesses to the Internet. It offers fast, economical transfer of messages anywhere in the world. As local telephone calls are free in most parts of the South Africa, messages destined to long-distance destinations become effectively free to send. Outside of the South Africa, local calls tend to be chargeable; therefore the email system can reduce the telephone bill considerably. The substantial cost-cutting associated with these facts have encouraged many businesses to invest in an implementation of email services.

 

• Email has considerable benefits over traditional paper based memo’s and postal systems:
• Messages can be sent at any time across the world as easily as across the office, to a group of people or a single recipient, without the sender leaving their desk.

 

• Messages can be logged, ensuring some form of record is held, and messages are stored when the recipient is away from their desk.

 

• The recipient can collect their mail when they want, from wherever they are.

 

• Mobile users can collect their mail whilst out visiting customers, or at other locations.

 

• The person you are sending the message to gets it directly, without passing through any third party.

 

• Environmentally friendly! Unless requested, email messages require no paper or resources other than storage space on a computer disk drive.

 

The header of an email includes the To: Cc: and Subject: fields. So you enter:

• The name and address of the recipient in the To: field,
• The name and address of anyone who is being copied to in the Cc: field, and
• The subject of the message obviously in the Subject:

The part below the header of the email is called the body, and contains the message itself.

Spelling the correct address is critical with an email. Like with a normal postal letter, if you get the address wrong it won’t go the correct receiver. If you send an email to an address which doesn’t exist the message will come back to you as an Address Unknown error routine.