ICT law 'a balancing act`

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.

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.

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.

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.

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.