Chapter 1 Flashcards
Explain what is informatics law?
This refers to the legal issues that arise from the use of information technology.
It covers various areas of law, as technology impacts nearly every aspect of human life.
What is legal informatics?
This term is broader and refers to the study of how legal information is managed using technology.
It includes topics like legal databases, artificial intelligence in law, and the digitalization of legal processes.
Unlike informatics law, which focuses on disputes and legal regulations, legal informatics looks at the bigger picture of how technology influences the legal system itself.
The distinction in legal informatics and informatics law was made by?
Marcel Storme in his preface to a book by fellow Belgian author Guy Vandenberghe, entitled Bescherming van Computersoftware.
What are the descriptors made from?
Some descriptors were created from case law, meaning cases helped define legal concepts.
However, relying only on case law could lead to gaps or missing links in legal research.
To avoid this, the system needed a solid starting point—a well-structured foundation of legal concepts.
Another side-effect, with interesting IT possibilities
Another unplanned benefit of the database was the idea of standard sentences (called “tariff” sentences).
These standard sentences could guide judges in determining appropriate punishments.
If a judge wanted to deviate from the standard, they would need to explain why.
Where was Initially, Jutastat was available?
Only on CD-ROMs, rather than online.
Name technological advancements
hypertext, multimedia, and telecommunications
reverse-engineering
analyzing a successful end product (a good lawyer) and working backward to understand how to train future lawyers.
Maharaj highlights that legal education happens in three disconnected stages:
University studies (academic theory).
Practical training (after graduation, in the profession).
Ongoing education (after admission as a lawyer).
The problem is that these stages don’t blend well together, leaving graduates unprepared for practice.
Van der Merwe suggests that law students should receive specific training in three areas:
Legal language literacy – understanding and using legal terminology correctly.
Legal logic – developing critical thinking and reasoning skills for legal arguments.
Legal research skills – knowing how to find important legal information efficiently.
What is the primary purpose of Litigation Support Systems (LSS)?
LSS are designed as specialised databases that are built specifically for one particular legal case.
What book discusses the advantages of litigation support databases?
Advanced Litigation Systems for Lawyers explores the benefits of such databases.
Why might a litigation support system not be necessary for smaller cases?
If the case has only a few hundred documents and a stable legal team, the lawyers can usually recall relevant information without needing a specialised database.
Who benefits from an electronic litigation database in large cases?
Both the court and legal counsel benefit, as it helps manage and retrieve case information efficiently.
What does an electronic litigation database contain besides recorded oral evidence?
It includes a listing and numbering system for real and documentary exhibits.
What challenge exists in the adoption of litigation support databases by judges?
Some judges are not fully computer literate, but this issue is expected to diminish with future generations.
What trend is emerging in South African courts regarding technology?
Courts are increasingly using information and communication technology (ICT) to improve efficiency.
Who advocated for the use of ICT in the South African justice system?
Former Minister of Justice, Brigitte Mabandla, prioritized ICT integration in the Justice, Crime Prevention, and Security Cluster (JCPS).
What are some ICT advancements implemented in South African courts?
They include the E-Scheduler case-management system, digital court recordings, and an audiovisual postponement system using CCTV.
What ICT system helps address South Africa’s long-standing ‘missing docket’ problem?
The automation of the police-docket system and electronic data capturing.
How can demonstrative evidence assist litigation?
It can include computer simulations, digital videos, and animations, helping the court visualize complex situations.
Why is demonstrative evidence effective in court cases?
Visual representations, such as images and videos, can explain complex evidence more effectively than verbal descriptions.
Give an example where the court used technology for a case?
Jacob Zuma’s Case – Could have been heard remotely, but he chose in-person court proceedings.
What possibility was raised in the inaugural lecture?
The use of computers as an aid in sentencing during criminal trials.
What advantage would a computer-based sentencing judge have?
It would have an unlimited memory of past cases with similar circumstances in the same jurisdiction.
Who developed an expert sentencing system in the 1980s?
Professor Richard de Mulder at the University of Rotterdam.
What flaw did Professor Richard de Mulder’s expert sentencing system have?
It considered too many extenuating circumstances, often recommending only mild punishments.
What are some potential parties that could be held liable for the outcomes of an expert system?
The subject expert, the knowledge engineer, the programmer/producer, or the end-user.
Who explored the issue of civil liability in expert systems?
K Alheit in a doctoral thesis titled Issues of Civil Liability Arising from the Use of Expert Systems.
What is a notable buzzword in modern technology?
The “convergence” of technologies.
How is technological convergence defined?
It is the merging of telephone, broadcasting, and computing technologies, industries, and cultures.
Which acts initially governed telecommunications in South Africa?
The Post and Telecommunication-related Matters Act and the Telegraph Messages Protection Act.
Which law replaced earlier telecommunication acts in South Africa?
The Telecommunications Act, later repealed by the Electronic Communications Act.
Which law originally governed broadcasting in South Africa, and how has this changed?
The Broadcasting Act initially governed broadcasting, imposing a government monopoly, but it is now regulated by the Electronic Communications Act.
What does computing technology include?
Computing includes hardware and its main purpose—data or information.
Which two South African laws regulate computing and data access?
The Promotion of Access to Information Act (PAIA) and the Regulation of Interception of Communications and Provision of Communication-related Information Act.
Which law merges telecommunications and broadcasting in South Africa?
The Electronic Communications Act.
What does Section 20 of the ECT Act regulate?
It regulates the legal position when electronic agents are used to form agreements in automated transactions.
According to Section 20(c), is a party using an electronic agent bound by the terms of an agreement?
Yes, they are presumed to be bound regardless of whether they reviewed the actions of the electronic agent or the terms of the agreement, subject to Section 20(d).
What is the key legal protection in Section 20(d)?
A party interacting with an electronic agent is not bound by the agreement unless the terms were capable of being reviewed by a natural person before agreement formation.
When is no agreement formed under Section 20(e)?
If a person makes a material error while interacting with an electronic agent and:
The electronic agent did not allow correction of the error.
The person notifies the other party of the error promptly.
The person takes reasonable steps to return or destroy any received performance.
The person has not used or benefited from the performance.
What legal analogy supports the restrictive interpretation of Section 20(d)?
It is similar to the common-law position on wagering contracts, where obligations exist but are not legally enforceable.
What must website owners do to ensure their contracts are valid and binding?
They must:
Provide clear reference to standard terms and ensure customers can access them online.
Require customers to accept terms via a button or checkbox.
Present a summary of the transaction before finalizing the order.
What steps does an online customer typically take before completing a purchase?
.
The customer must:
Confirm awareness of the trader’s standard terms and conditions.
Confirm the privacy policy.
Review and confirm selected items in the shopping cart.
Proceed to the payment page and complete payment, usually via credit card.
How can a website owner clarify whether a listing is an offer or an invitation to do business?
By explicitly stating in the terms and conditions that:
The displayed goods do not constitute an offer.
Any order by a customer is merely an offer that requires acceptance.
Orders are subject to confirmation before a contract is concluded.
Why are goods displayed on an e-commerce website considered an invitation to do business rather than an offer?
Because the seller has the right to accept or reject the customer’s offer to purchase.
What sequence of events typically leads to the conclusion of an online contract?
Goods/services are displayed with prices.
The customer selects items (e.g., adding to a shopping basket).
The customer confirms purchase (e.g., clicking “Buy”).
Payment details are entered (e.g., credit card).
The seller receives payment confirmation from the bank.
The contract is concluded upon delivery or collection.
Why is the analysis of offer and acceptance not always sufficient in contract law?
Because it helps determine objective agreement, but does not always clarify subjective consensus or whether a contract is vitiated by mistake.
What is the reliance approach to consensus in contract law?
A party may be bound to an apparent agreement if their conduct led the other party to reasonably believe that consensus was reached
Which case established the reliance approach in South African law?
Sonap Petroleum (SA) (Pty) Ltd v Papadogianis.
When does the reliance approach apply?
When a party’s conduct creates a reasonable belief in the other party that an agreement exists, even if subjective consensus was lacking.
What is an iustus error in contract law?
A reasonable mistake that allows a party to escape a contract, despite an apparent agreement.
What are the two types of electronic agents in contract law?
Passive electronic agents – function based on pre-programmed instructions.
Autonomous electronic agents – operate independently, adjusting their actions over time.
What real-world system works based on the reliance theory in electronic transactions?
Electronic Data Interchange (EDI) systems, where computers automatically conclude contracts.
What is Electronic Data Interchange (EDI)?
The electronic transfer of commercial or administrative transactions between computers using a standardized format.
What is an interchange agreement in the context of EDI?
A framework agreement that regulates the rights and obligations of parties engaged in electronic data interchange.
Which organizations have developed model interchange agreements?
South African Bureau of Standards (1996) – for South Africa.
United Nations Economic Commission for Europe (UNECE WP.4) – for international use.
What key issues should an interchange agreement address?
Selection of EDI messages, standards, and communication methods.
Responsibilities for maintaining software, hardware, and services.
Procedures for system changes affecting communication.
Security procedures.
Point at which EDI messages gain legal effect.
Roles of third-party service providers.
What additional issues should an interchange agreement address?
Procedures for dealing with technical errors.
Confidentiality requirements (if necessary).
Liability for delays or failure in EDI communications.
Laws governing EDI message exchanges.
Other specific arrangements between the parties.
Methods for dispute resolution.
How is EDI a form of smart contracting?
EDI systems automatically conclude and execute agreements without human intervention, ensuring performance based on pre-set conditions.
Give an example of how EDI functions as a smart contract in retail.
A supermarket system detects low stock at checkout and automatically reorders products from suppliers, who electronically process and dispatch orders—all without human involvement.
What is a smart contract?
A computer code that automatically executes contractual duties when a trigger event occurs.
How can smart contracts range from simple to complex?
Simple smart contracts – Basic EDI transactions that execute pre-set agreements.
Complex smart contracts – Autonomous agents that can negotiate, conclude, and fulfill agreements.
What are the three main concerns with traditional contracts that motivate the move toward smart contracts?
Ambiguity – Natural language contracts may be interpreted differently by parties, judges, or arbitrators.
Corruption – Parties or officials involved in contracts may be threatened or bribed.
Defective enforcement – A party may evade enforcement by ignoring a legal judgment, hiding assets, or leaving the jurisdiction.
How do smart contracts address these concerns?
Eliminate ambiguity by using precise programming language.
Prevent corruption since contracts execute automatically, without human intervention.
Ensure enforcement because contract terms self-execute when trigger events occur.
What is a trigger event in a smart contract?
A predefined condition that, when met, automatically executes contractual obligations.
What criticism do Dorovic and Lech have of smart contracts?
They argue that:
The contracting process is complex, and computer code is not infallible.
Smart contracts may still need human interpretation for disputes and enforcement.
What fundamental legal debate do Pardolesi and Davola raise about smart contracts?
A: Whether smart contracts are:
True contracts, requiring legal interpretation and enforcement.
Mere tools used within traditional contracts, making legal questions irrelevant.
What is a blockchain in simple terms?
An open, public, decentralized ledger that permanently records transactions without a central authority.
What are the key characteristics of blockchain technology?
Decentralization – No central entity controls it.
Transparency – All participants can see recorded transactions.
Security – Uses cryptographic techniques to prevent tampering.
Permanence – Once recorded, transactions cannot be changed.
How is blockchain currently used?
Mainly for cryptocurrency transactions like Bitcoin.
How are smart contracts linked to blockchain technology?
Blockchain provides a secure, transparent, and automated system to execute smart contracts without third-party intervention
Why has the digitization of bills of lading been difficult?
Bills of lading serve as:
Transport agreements
Receipts
Documents of title (the biggest challenge to digitization)
How does the ECT Act recognize smart contracts in South Africa?
Section 22 allows for contracts concluded wholly or partially by electronic agents.
Section 1 defines an electronic agent as a program or automated system that initiates actions or responds to data messages.
What does the Tennessee legislation define as a smart contract?
An event-driven computer program that automates transactions on a distributed, decentralized ledger.
The smart contract can:
Transfer assets
Create and distribute electronic assets
Synchronize information
Manage identities and software access
Why is the open-ended approach of the ECT Act preferable to technology-specific legislation like Tennessee’s?
The ECT Act’s Section 20 is more adaptable to evolving technologies and is not limited to specific technological contexts, unlike state laws that may become outdated quickly.
How is a vending machine an example of a smart contract?
The trigger event occurs when the customer selects a product and inserts money.
The machine automatically executes the contract by providing the product, without further human intervention.
What is the difference between Bitcoin and Ethereum in relation to smart contracts?
Bitcoin tracks the ownership of digital currency.
Ethereum allows the running of decentralized applications and supports smart contracts, enabling more complex multi-contract transactions.
How does blockchain help digitize bills of lading?
Blockchain provides ownership tracking and secure transfer of possession without the need for physical documents.
It resolves the challenge of bills of lading as documents of title in international transport.
Why is it important to determine the place where a contract is concluded?
The contract must comply with the law of the place (lex loci contractus), including any formalities and requirements.
The legal system applicable to the contract may be determined by the place of contracting.
Consumer-protection measures may apply based on the place of contracting.
The jurisdiction for disputes can be influenced by where the contract was made.
Why is it important to determine the time when a contract comes into existence?
The offeror may retract the offer up to the moment of valid acceptance.
Expiration periods, such as performance deadlines, begin at acceptance.
Timing can be critical for calculating interest on large sums of money.
The relationship between the parties changes once the agreement exists, and they must fulfill their obligations
What is the common law rule for when a contract comes into existence?
The contract comes into existence at the time and place determined by the parties.
The offeror can set the time and place for acceptance to become final and binding.
What does Section 23 of the ECT Act address regarding the time and place of data messages?
Sent: A data message is regarded as sent when it enters an information system outside the originator’s control or, if in the same system, when it can be retrieved by the addressee.
Received: It is regarded as received when it enters the addressee’s information system and is retrievable.
Place of sending and receiving: The message is deemed to be sent from the originator’s usual place of business or residence and received at the addressee’s usual place of business or residence.
How is the time of sending determined for data messages under the ECT Act?
A data message is considered sent when it leaves the originator’s information system.
For example, an email is deemed sent when it leaves the originator’s server and travels through the Internet, unless both parties use the same information system.
What formalities are usually required for the valid conclusion of a contract?
Writing: For legal certainty.
Signature: For identification, attribution, assent, and authentication.
Third-party authentication: Such as notarial execution.
Why are formalities required in contract law?
To provide legal certainty, identification, attribution, assent, and authentication of the contract.
These formalities may be required by statute or agreed upon by the parties
What are the exceptions to the freedom of form in South African law?
Formalities prescribed by law: Certain types of agreements or communications require specific formalities.
Example: The Alienation of Land Act requires contracts for land to be in writing and signed.
Can you name some South African laws that require formalities for certain contracts?
Alienation of Land Act: Requires land contracts to be in writing and signed.
General Law Amendment Act: Requires contracts of suretyship to be in writing and signed by the surety.
Matrimonial Property Act: Requires written authorization and attestation by two witnesses for certain transactions.
Copyright Act: Requires the assignment or exclusive license of copyright to be in writing and signed.
Mining Titles Registration Act: Requires certain mining rights and leases to be notarially executed.
