The South African constitution and electronic commerce

In the world of electronic commerce individuals unwittingly impart their information to possible predators of personal information. For example, cookies are used to “tag” users accessing a specific web site. When the user accesses the same site again, a copy of the cookie alerts the remote server, who then knows whom the user is and that s/he visited the site before. Obtaining and dealing in data about web users have become everyday occurrences – in some instances such “data mining” forms the main focus of several businesses.
It is common cause that the Internet may be and indeed is used quite frequently in manners that infringe various rights contained in our Bill of Rights. In many cases, what happens on the Internet may also attract criminal liability. As a result it often happens that two fundamental rights, namely the right to freedom of expression and the right to privacy, come into potential conflict.
In a democracy, freedom of expression is almost taken for granted. The press and other media, especially, rely heavily on this right. In South Africa, section 16(1) of the Constitution guarantees the right to freedom of expression, which includes, among others, freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; academic freedom and freedom of scientific research. As such, it may be that spammers have the constitutional right to commercial expression. The question is: Do spammers have the right to express themselves in private property? It is suggested that they be only allowed to do so after having obtained the consent of the individual to be included in a mailing list that would be used to send unsolicited e-mail advertising. Section 45 of the Electronic Communications Transactions Act of 2002 (ECTA) now prohibits the sending of unsolicited goods, services or communications.
The right to privacy is protected by section 14 of the South African Constitution. In contrast thereto, section 32 of the Constitution guarantees the right to access to information. Neither of these rights are absolute rights, as they may be limited in accordance with section 36 of the Constitution.
The ECTA prescribes that suppliers of goods on the Internet need to, amongst others, make its privacy statement available to users of its site. The ensuring of the right to privacy is not, however, a compulsory provision of ECTA. Section 50 of the ECTA provides for the voluntary compliance of the principles pertaining to the collection of personal information as set out in section 51 of the Act.
Against this background, this paper addresses the South African legal background to privacy on the Internet.