Fawzia Cassim (B.A (law) (University of Durban Westville); LLB (University of Natal – Durban); LLM LLD (University of South Africa)) is an Associate Professor in the Department of Criminal and Procedural Law at the University of South Africa. She is also an admitted attorney and conveyancer of the Republic of South Africa. Her areas of interest are: human rights law, constitutional procedural law, gender law and cyber law.

Abstract

The South African common law has proved to be ineffective in addressing cybercrime. The Electronic Communications and Transactions Act, Act 25 of 2002 (“ECT”) was introduced to address inter alia cybercrime in South Africa. Whilst the advent of the ECT is lauded, there is room for improvement. To illustrate this, section 15 of the ECT facilitates the admission of information in electronic format but the criminal sanctions in terms of sections 89 and 86 of the Act appear to be inadequate. Recent case law also reveals that the courts are adopting a cautious approach towards cybercrime cases. A call for more clear and concise judicial guidance has been mooted. The South African banking sector is also vulnerable to cybercrime. However, the establishment of organisations such as SABRIC to combat cybercrime in the banking industry is welcomed. Although South Africa has adopted the Council of Europe’s Convention on Cybercrime, it has not ratified the treaty. It is recommended that South Africa should ratify the treaty to avoid becoming an easy target for international cybercrime. This presentation will deal with measures addressing cybercrime in South Africa and the way forward.

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NOMAGUGU HLONGWANE (LLB- University of the Western Cape; LLM (Labour Law)
University of the Western Cape; is a Senior Lecturer in Commercial law in
the Department of Mercantile Law, College of Law, University of South
Africa. Her area of interest is Intellectual Property law, Commercial Law
and Labour Law.

Abstract

Intellectual property law is facing unprecedented challenges. Issues involving copyright and the internet raise questions which lie at the very heart of the interface between law and technology. The aim of the paper is to highlight the impact of an unauthorised use of copyrights material that copyright law is design to eliminate. Section I of the paper describe some of the challenges that the internet poses to copyright law. Section II will consider international treaties on copyrights and how South Africa has dealt copyright infringement via the use of internet. Finally, Section VI will analyzes emerging approaches to internet-related copyright issues and concludes that technology may allow users to move beyond the reach of copyright legislation therefore lawmakers must adopt flexible approach to copyright law in response to the internet.

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Dipl.-Jur. Christian Krökel studied law and European legal practice in Hannover, Germany and Malta with a specialization in the field of IT-law and graduated in April 2009. Currently, he works on his M.L.E. thesis, which focuses on privacy issues. He works as a research associate at the Institute for Legal Informatics at the Leibniz University of Hannover, Germany and is concerned with legal issues of data protection and e-learning.

Abstract

Since its rapid development in the 1990s, e-learning (as a generic term for all kinds of technology-enhanced learning) became a broadly discussed and extensively used concept in today’s education. While it spurs great hopes and expectations from a pedagogical point of view, there are however a significant number of legal issues connected to e-learning that have to be taken into consideration - in particular copyright issues and questions relating to data protection.

The latter are of particular importance given the more recent e-learning approaches that facilitate and contribute to the -interactive- communication and collaboration of students such as Blackboard, Moodle or Web 2.0 applications  (often referred to as e-learning 2.0 or community based learning). This presentation will deal with these so-called sociotechnical systems’ (STS) privacy implications, utilized at universities and other institutions of higher education under German and European Law. In particular, it will focus on the compatibility of these systems with the principles of data protection as laid down in Directive 95/46/EC (data protection), Directive 2002/58/EC (data processing) and 2006/24/EC (retention of data) using the example of some widespread learning management systems. Particular emphasis will be laid upon the data subject’s consent, serving as one way of protecting the individual's privacy.

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MPAKWANA ANNASTACIA MTHEMBU (BJuris, LLB- University of Zululand; LLM (Specialisation in Commercial Law) - University of South Africa; LLM (Specialisation in Mercantile Law)- University of Pretoria, is a Senior Lecturer in Corporate Law in the Department of Mercantile Law, College of Law, University of South Africa. Her area of interest is Labour Law, Banking Law and Corporate Law.

Abstract

Traditionally the banking laws, regulations and supervision were designed primarily to address the fundamental principle relating to safe and sound business practices by financial institutions. To maintain safe and sound business practice it is of outmost importance that customers are protected against losses resulting from inadequate remedies available to them.  Banking by its very nature is a high risk business. However, the major risks associated with banking are legal risks, credit interest rates and liquidity. Internet banking has increased some of these risks by creating new ones. The electronic funds transfer is based on technology which by its nature is designed to extend the geographical reach of banks and customers. This kind of a market expansion extend beyond borders, therefore there will be problemsdanger which banks will try to avoid like regulation and supervision. Other regulatory and legal risks include, the uncertainty about legal requirements in some countries and jurisdiction ambiguities regarding the responsibilities of different national authorities. Customers and banks may be exposed to legal risks associated with non-compliance with different national laws and regulations including consumer protection laws, record keeping and report requirements. Due to insecurity created by electronic funds transfer, it is of importance to analyse measures under South African Law and whether these measures can effectively prevent insecurity and what lessons can be learned from abroad.

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Sanette Nell (BLC, LLB, LLM, LLD) is Professor of Law at the University of South Africa, a member of the Unit for Medicine and Law and Co-director of the Course in Medicine and Law. She is co-author of Cyberlaw@SA: The Law of the Internet in South Africa/, regularly publishes and delivers papers (at national and international conferences) on media law, Internet law, aspects of environmental law and medical law. She acted as assessor in a number of murder trials and is consulted regularly by the media and practitioners on aspects of the law in her field of expertise.

Abstract

One of the principles of the law of defamation has always been that every individual publication of defamation gives rise to a separate cause of action. In order to prove that a communication on the Internet is a publication is fairly straightforward. Any web page that is accessible by a computer user and which can be read and understood, constitutes a publication. A problem arises on the Internet when, for example, a newspaper publishes a defamatory article on its website, but at the same time the newspapers are also archived on the Internet. The question is whether subsequent occasions of accessing the website give rise to separate causes of action? Courts on both sides of the Atlantic deal with this problem by following one of two approaches: the single publication rule or the multiple publication rule. The multiple publication rule can lead to a /multiplicity of suits /in different jurisdictions but, also a /suit each time /there is access to a defamatory article on the Internet. The potential scale of the problem perhaps becomes clear when one bears in mind that it is possible that defamatory articles could be accessed anywhere in the world – it is therefore a worldwide problem. This presentation will deal with the effect that each of these approaches has on the problem at hand – taking into consideration the rights of the parties involved and the possible chilling effect on freedom of speech.

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Hiren P. Patel is the Chief Executive Officer of Aphelion Legal Solutions,
an eDiscovery consulting, document review, and legal process outsourcing
firm based in Houston, Texas, USA with additional offices in Washington, DC,
USA and Chennai, India.  Aphelion advises Fortune 1,000 companies and law
firms on compliance with eDiscovery obligations and manages large scale
discovery projects, including attorney review (responsiveness,
confidentiality, privilege, logging and redaction).  He is also a founding
partner of the law firm of Patel & Warren, PLLC where he is currently on
sabbatical status while working with Aphelion.  Mr. Patel is a graduate of
the University of Virginia School of Law and of Rice University.  After law
school, Mr. Patel practiced with the litigation group of the international
law firm DLA Piper, where he was staffed on litigation teams representing
Fortune 500 companies in commercial litigation and patent infringement
matters before state and federal courts. His experience also includes
representation of mid-sized companies and private individuals in a variety
of litigation matters.  Mr. Patel is also an adjunct professor of Business
Law, has published an article concerning the law of command responsibility,
and has presented on topics ranging from eDiscovery management, document
review processes, and legal process outsourcing.

Abstract

Under discovery rules in the United States, a litigant generally has the burden to produce all requested documents and electronically stored information (ESI) in its possession, custody, or control that are reasonably calculated to lead to the discovery of admissible evidence.  U.S. courts traditionally apply broad definitions of “possession, custody, or control” that can result in non-U.S. businesses having to comply with the discovery obligations of their U.S. affiliates.  The result is a quagmire of conflicting legal obligations and technological difficulties, including: 1) the conflict of U.S. discovery laws with privacy laws enacted by many jurisdictions; 2) the conflict of U.S. court decisions and the Hague Convention pertaining to the process for obtaining international discovery; and 3) the coordination of data preservation and production efforts across multiple affiliated companies of a single global enterprise.  Recent court decisions reveal an increasing use of sanctions and adverse inference instructions to litigants who fail to comply with discovery rules.  This trend underscores the importance of adopting a proactive approach to data and document preservation that adequately balances the risk associated with affiliated or direct business operations in the U.S. with privacy and protection laws in home jurisdictions.  Multinational businesses operating in the U.S. market directly or through an affiliate should adopt certain processes to assist information technology departments with ESI preservation and collection.

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Priscilla is a Lecturer in Law at University of Leicester, United Kingdom. She lectures on undergraduate and post graduate programmes and supervises Doctoral and other research candidates. She is a graduate of King's College London and Queen Mary, both of University of London with an LLM and PhD, respectively; and of Fourah Bay College University of Sierra Leone, with BA and LLB (Hons). Priscilla is an expert in Public International Law with a good record of publications in journals and scholarly volumes, including a book. She is also a Barrister and Solicitor of the High Court of Sierra Leone and has been on several international negotiations, including World Bank Missions and drafting of the Statute and Agreement of the UN Special Court for Sierra Leone.She has strong research interest in critical investigations into the formulation, implementation and effectiveness of international law and policy in fields of development, environment and world trade issues, especially how these affect developing countries.

Abstract

The paper examines the international framework for foreign investment regulation and ascertains it adequacy for development promotion. It maps the relationship between Law, FDI and development and illustrates the systemic undermining of the development imperative. Drawing on examples from state, institutional and corporate practice the paper argues that a regime skewed toward protection of investor interests is ill suited to dealing with contemporary development challenges -liberalisation of economies, globally integrated production & service patterns, technology advancements and common environmental threats- which increasingly blur the public and private regulatory divide. It reveals the limitations in projecting international investment regulation as pathway to economic salvation in developing countries and suggests appropriate regulatory mechanism conducive to advancing mutuality of interests in investment and development goals.

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SP (Stephanus) van Zyl completed his LLB (2000) and LLM with Specialisation in Tax Law (2001) at the University of Pretoria. Stephanus started his academic career as a law tutor at the University of Pretoria in 1999 where he was appointed as lecturer in 2001 in the fields of Commercial Law, Tax Law and Cyber Law until 2007. He was appointed at the University of South Africa (UNISA) during 2004 as temporary lecturer in Tax Law and Cyber Law until he was appointed as permanent senior Lecturer in Tax law on pre and post graduation levels. Stephanus has published widely in the fields of Cyber Law and Tax Law and he has presented papers at numerous International Conferences.

Abstract

Environmental issues such as climate change and global warming has recently been the topic on many a tongue and most people are concerned about saving the environment. Governments are therefore urged by environmentalists and alike to pass legislation to curb climate change and other environmental downfalls. Since his inauguration as minister of finance[1] Trevor Manual has made many changes to his budget to allow the government of South Africa to spend money on environmental affairs. Moreover, certain taxes have been introduced to change the taxpayer’s attitude towards conserving the environment and be more conscious about the environment. Most of these taxes are clearly aimed at energy wasters and carbon dioxide polluters. Taxpayers who have changed their way of living by using less electricity, recycling bags, driving smaller cars and driving less and less have had minimum to no effect on their personal budgets as opposed to taxpayers who continued their wasteful lives and became poorer due to extra taxes and levies. This article will focus on the South African tax legislation and its amendments since 1994 and how the taxpayer’s money is being used to save the environment.

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Xiaolu Zhang is a research fellow at the University of Lucerne in Lucerne, Switzerland. She has a J.D. degree from the University of Colorado in Boulder, Colorado, USA, as well as a degree in computer science from the University of Missouri in Columbia, Missouri, USA. Prior to becoming a research fellow, Ms. Zhang worked as an attorney in Washington, D.C. She is currently admitted to practice in Colorado and the District of Columbia. At the University of Lucerne, she is the coordinator of the Lucerne Academy for Human Rights Implementation and an instructor for classes in Anglo-American Legal Thinking, Transitional Justice, and Terrorism and the Law. Her research interests are in the fields of United States Constitutional Law, international human rights, terrorism, and legal education.

Abstract

No one would argue that the purposes and aims of child pornography laws are legitimate and necessary. Recently, however, these laws, which have the ostensible aim of protecting children, are instead being used to punish children and dissuade the new phenomenon of “sexting” in the United States. “Sexting” refers to the use of mobile phones with built-in cameras to produce and distribute images of oneself in a sexually provocative or revealing position. The potential danger that this trend poses to minors is huge. Photographs produced by the use of “sexting” can be distributed to unintended third parties, often leading to embarrassment and harassment of the original sender. Moreover, senders are also in danger of being charged with possession and distribution of child pornography, regardless of the fact that they are minors and the pictures are often of themselves. In Florida, a teenage couple who photographed themselves engaging in unspecified sexual behavior were tried and convicted of production and distribution of child pornography. In Pennsylvania, parents and prosecutors are involved in a tense legal battle over three teenage girls who were threatened with child pornography charges for taking photographs of themselves in their underwear. In New Jersey, a 14-year old was arrested on charges of posting nude photos of herself online. Not only is charging minors with child pornography a rather new phenomenon, it also appears to be a strategy that several states are adopting. This presentation will look at the growing trend of charging minors who engage in “sexting” with child pornography charges by examining a case study of an actual prosecution, what the consequences of such a conviction entails in the United States, internet privacy issues, the First Amendment rights implicated, the interference with the parental right to direct their child’s upbringing in the Fourteenth Amendment, and an analysis of the appropriateness of using the legal system as a way of dealing with this problem.

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