A new study has found that most South African Web sites do not comply with the provisions of the ECT Act and related legislation.
IT attorney firm Buys Inc reports that an annual survey of South African Web sites has found the number of sites that fail to comply with the provisions of related legislation grew from 47% in 2002 to 81% this year. Compliance levels dropped by more than 30% in two years, says Buys Inc.
The 2004 South African Web site Compliance Survey, conducted by Legalsentry and Buys Inc, looked at 1 550 sites on the list of Proudly South African Web sites.
It found that only 1.03% of the sites listed were fully compliant (with a +95 compliance rating), and only the Telkom Web site had a 100% compliance rating.
Gerrit van Gaalen of Buys Inc Johannesburg says non-compliance invites a range of legal liabilities, including civil liability, criminal fines, copyright infringement, trademark abuse, repudiation of contracts and investigation by the Consumer Affairs Committee.
"The fact that we have not seen high profile cases resulting from non-compliance in SA is probably to blame for the assumption that nothing happens to those Web site owners," says Van Gaalen.
He notes that low compliance appears to be an international trend, with a survey in the US finding that only 25% of sites in the US were fully compliant with laws there.
Buys Inc MD Reinhardt Buys notes that the most shocking finding of the 2004 results is that 81% of the Web sites surveyed do not have any legal notices at all - up from 47.3% in 2002.
"Unfortunately, the legal notices used by most sites either fail to address the required issues or are invalid because of implementation in breach of section 11(3) of the Electronic Communications and Transactions (ECT) Act 25 of 2002," says Buys.
The number of Web sites with terms and conditions available as hyperlinks from the home pages decreased from 7.1% in 2002 to 6% this year, while the use of privacy policies is down from 15% to 8% in 2004.
However, the number of sites with liability disclaimers increased from 3.8% to 8%.
Thirty-one percent of Web site operators surveyed claimed they did not know what to do to become compliant, while 87% of respondents said their Web sites were not compliant because the legal fees required for compliance are too high and beyond the reach of small and medium companies.
Advocate Willem Heath, former judge and chairperson of the Heath Investigative Commission, described this as "gross negligence", saying citing the high cost of legal fees as an excuse is "totally preposterous".
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