CYBER LAW - THE SEEMINGLY POSITIVE RESPONSE TO TECHNOLOGICAL ADVANCEMENTS
Technological advancement is a reality that is influencing and challenging legal norms. Thus, a pertinent question is how has or should South African law respond? The argument herein will be that the courts, as bastions of the law, have already confronted this challenge and by attempting to harmonise law and technology have set a precedent that will ensure that law is not left behind by Technological advancement’s.
‘Nothing novel is presented by new technologies.’
Harmonising law and technology require one to first acknowledge that both law and technology have existed and will continue to exist for some time and that they have been and will be intertwined for many years. The law of banking, for example, has, since 1930, developed and made use of electronic contracting in carrying out some and now a majority of its functions. The relationship between technology and law is not new and therefore fear of harmonisation based on a perceived novel relationship is unfounded.
The banking law example highlights another point which is that law, by its very nature, has historically formed and reformed in response to change. Each time society developed, the law responded but did not completely change. Importantly for the purposes of the initial question is that there is no need to reinvent the proverbial wheel. Structures already exist that make the task of harmonisation simpler.
To summarise: acknowledging the existing relationship between law and technology made possible by laws ability to adapt is key when considering the harmonisation of law and technology.
The points raised above are best illustrated in Jafta v Ezemvelo KZN Wildlife  JOL 22096 (LC) (“Jafta”). The court in Jafta considered whether acceptance of an offer of employment was contractually valid if sent by e-mail or short message service (“electronically”). Instead of ignoring the issue of harmonisation, the court set a precedent that would arguably set the tone for how one should approach harmonisation. The court began by acknowledging and unpacking the technical nature of the question at hand. However, instead of reinventing the law or creating new law, the court unpacked the common law requirements for valid offer and acceptance and then applied same to the novel problem of contracting electronically. The simple and methodical approach taken in Jafta demonstrated how the law that has and continues to be developed over the years does not need to be reinvented to respond to technology, but simply needs to be applied in a new and unique ways.
Jafta set the precedent of how important acknowledgement of the relationship between law and technology is. Important as this precedent was, acknowledgement is futile if it does not precede due and equal consideration of both legal and technical solutions (collectively “all solutions”) to legal and technical problems. If one were to define an approach where equal consideration is given it would be the ‘prepositional approach’. The prepositional approach was illustrated in Jafta. In grappling with the issue, the court unpacked, in detail, the characteristics of electronic communication. Thereafter, the court unpacked, in detail, the law of contract. Only then did the court attempt to find a solution using both. Jafta is significant specifically because it not only emphasized the need to acknowledge technical solutions it also considered it when coming to a solution thus giving effect to the prepositional approach.
The way the law responds to technological advancement will determine whether technology will be harnessed for good. The best way to face this challenge, as argued herein and confirmed in Jafta, is not to recreate the existing law but to apply it in novel ways. Furthermore, when faced with a technical albeit legal problem, the problem must not be approached solely from one perspective but from both, thus ensuring a comprehensive and technically developed solution.
- Oliver Marshall