a data message.294 This point finds application in the ECT Act’s definition of data
messages which ousts Skype and Voice Over Internet Protocol (VOIP) from the
sphere of application.295 Although Skype and VOIP are electronic communications,
they do not fall under the ambit of data messages, and as a result fall away from the
scope of the ECT Act.296 The instant and interactive electronic communications like
VOIP or telephonic call fall out of the scope of the ECT Act.297
The same argument is advanced against the use of the general term, electronic
communication, which replaces data messages as reflected in the Bill. The Bill’s
definition of a data message covers recorded electronic communication, not instant
electronic communications.298 The observation that the live electronic communications
do not constitute data messages covered under the Bill is affirmed. 299 It is submitted
that the use of data messages should not be substituted for electronic communication
in order to avoid cases of ambiguity.
Notably, the ECT Act consistently employs the term data messages throughout
electronic transactions provisions.
It is submitted that the consistent use of data
messages in the ECT Act’s relevant provisions, coupled with section 4(1) on sphere
of application on data messages,300 is the correct approach that is in harmony with the
founding provision in section 11 without which electronic transactions would not have
been afforded legal force and effect.
294
Electronic communications available at
http://www.alrc.gov.au/publications/6.%20Documentary%20Evidence/electronic -communications (accessed 9
September 2015).
295 Van der Merwe et al (2008: 151).
296
S2 ECT Act, provides that a data message includes voice, where the voice is used in an automated
transaction and a stored record.
297 Van der Merwe et al (2008: 151).
298 S2 of the Bill.
299 Ramokanate, LL. (2015) “The Lesotho Electronic Transactions and Electronic Commerce Bill: Will it replace
the Common Law of Contract as we know it?” 1/2 LLJ 117 at 120.
300 S4 (1) ECT Act.
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