Local e-lawyers say there is still a great deal of 'misinformation` about legal compliance on SA websites.
E-lawyers have taken issue with a survey showing that SA companies` websites are not legally compliant, saying non-compliance is not only a legal issue but a commercial one as well.
Last week, IT attorney firm Buys Inc released its annual survey of SA websites, which said the number of sites that fail to comply with the provisions of related legislation grew from 47% in 2002 to 81% this year. The survey, which was conducted in conjunction with LegalSentry, says compliance levels dropped by more than 30% in two years.
Steven Ferguson of law firm Nicci Ferguson says since the passing of legislation such as the ECT Act, a great deal of misinformation has been given to companies from experts and service providers about the scope of these Acts and the penalties or legal effects of non-compliance.
"It is no wonder that business owners and entrepreneurs with limited budgets have not properly addressed these issues," he says.
Lance Michalson of Michalsons Attorneys says the issue of compliance can have either a narrow definition or a wide one.
"A narrow definition applies to issues such as fines and criminal liability. A wider definition of compliance is where you determine where your compliance criteria lie and this could mean legal and commercial and organisational objectives," he says.
Michalson says the overall issue regarding compliance is one of risk. "In a worst case scenario a consumer can cancel a transaction. However, by doing that, a number of legal issues could be raised, such as loss of income or damaging a company`s reputation."
Ferguson goes on to say that once again, the issue of compliance versus best practice is brought into question.
"If one looks at strict compliance, the only statutory duty applicable to normal brochure-style website owners in SA at present is to make certain details accessible on their website: their name and registration number in the case of close corporations, and the full names and nationalities of directors in the case of companies. The criminal penalty for non-compliance is R500 and R400 respectively," he says.
For e-commerce websites, the consumer protection provisions of Chapter 7 of the ECT Act will be applicable, says Ferguson. "However non-compliance with these provisions will not result in criminal penalties but instead may result in transactions being cancelled by consumers and, in some cases, a claim for damages (where a secure payment system has not been used on the site)."
Michalson says that since most websites cater for business-to-business transactions, they do not need to comply with the ECT Act extensively. "Otherwise they innocently take up legal obligations that they do not need."
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