School of Law (ETDs)

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Start date: 2020Subject: search.filters.subject.SDG-9: Industry, innovation and infrastructure

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Now showing 1 - 10 of 17
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    A South African Perspective on Self-preferencing as a form of abusive conduct in the digital market
    (University of the Witwatersrand, Johannesburg, 2024) Madiya, Yolisa Nolwazi; Marumoagae, M. C.
    This research report highlights how dominant firms abuse their dominance in the digital market by engaging in self-preferencing initiatives to the detriment of competition in this market. It illustrates the negative impact of the skewed flow of information and deliberate denial of access to information by dominant firms to their competitors in the downstream market to leverage their services or products which ultimately affects competition in this market. Most significantly, this report reflects on how the European Union has addressed the growing self- preferencing concerns to determine lessons (if any) that South Africa can learn therefrom. Data has become an important input into the decision-making of many digital firms which has increased the reliance on privacy regulations. This report also discusses the negative impact of privacy regulation in competition law and demonstrates how it enhances the adoption of self- preferencing practices in the digital economy. The value of data and the characteristics of online platforms propels the tension between access to data and consumer's long-term interest. It is shown in this report that the limitation of data portability using privacy regulation qualifies as a form of self-preferencing and strengthens the control of a dominant firm in a digital economy. South African Competition Act 89 of 1998 is discussed in this report to evaluate its adequacy in addressing self-preferencing concerns.
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    Effects of Investor Treatment on FDI Inflow: Developed v Developing States
    (University of the Witwatersrand, Johannesburg, 2024) Carides, Telis
    It has been widely accepted that investor treatments afforded by states alone do not have a significant impact on FDI inflow. Rather, FDI inflow has been shown to be dependant on numerous other factors. This has however been traditionally examined against the backdrop of an ever-more globalised world, whereas more recent years have seen an uncharacteristic slowdown in globalisation, and indeed has ushered in a post-pandemic anti-globalisation trend. During this period, FDI in developed and developing states has faired very differently. Specifically, FDI into developing states has proven significantly more resilient compared to their developed counterparts, and indeed has overtaken developed states in net FDI inflow for the first time. Can this resilience be attributed to divergent approaches in investor treatments? This enquiry was undertaken by examining representative proxy states from the pool of developed and developing nations. After carefully electing said proxy states from both ends of the FDI inflow spectrum, I analysed whether, and to what extent they provided the most considered investor treatments; MST/FET, NT, MFN, pre-establishment protection and protection against expropriation. Notably, although the USA generally provides for these protections and is at the top of the FDI spectrum, Angola remained at the bottom of the spectrum whilst providing similar, and indeed broader protection in the case of NT and MFN. Furthermore, the Netherlands is the only state lower than Anglo during the examined period, yet it, save for pre-establishment protection, offered similar treatment. The study in casu was unable to establish that differences in investor treatments had any bearing on FDI inflows, and could not account for the converse performance of developed and developing states during the anti-globalisation period.
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    A practical review of the effectiveness of artificial intelligence in the automated review of legal contracts
    (University of the Witwatersrand, Johannesburg, 2024) Fouché, Jacques Gerrit
    This research report compares the performance of AI-driven automated contract review platforms with that of human contract reviewers, aiming to see improved effectiveness for the elements of time, cost and quality. An empirical study is done by comparing the specific performance of an automated contract review platform provider, Lawgeex, to the human contract reviewers of a business entity, Endress+Hauser. The results of the effectiveness assessment are reported on through dashboard data and questionnaires to the users of the platform. Recommendations are made both in general and specific to the two entities of the empirical study.
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    Can emoji constitute defamatory content in the context of the South African law of defamation?
    (University of the Witwatersrand, Johannesburg, 2024) Saloojee, Raeesa
    The use of emoji in digital communication often reflects a casual and carefree approach to conveying emotions and sentiments. Frequently added alongside text messages, emoji are seen as harmless embellishments, requiring little thought regarding their meaning or potential consequences. However, these seemingly innocuous additions may carry significant legal implications. Some emoji have acquired secondary meanings and connotations, which may give rise to defamation claims. This research report thus delves into the intersection of defamation law and emoji. Specifically, we examine the potential for emoji to constitute defamatory elements and explore how courts may interpret their usage. Drawing on legal perspectives from the United Kingdom and Australia, this research report sheds light on the evolving challenges posed by emoji in the realm of defamation law. As South African jurisprudence has yet to grapple with the defamatory potential of emoji, this research report explores whether South African courts will follow the lead of their international counterparts in interpreting emoji. This study thus contributes to the evolving discourse on the intersection of technology, communication, and the law in the digital age.
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    Universal internet access in South African disadvantaged communities: is there adequate regulation?
    (University of the Witwatersrand, Johannesburg, 2024) Thomas, Khayakazi
    As a result of the advent of the fourth industrial revolution, artificial intelligence, the technology of things and other similar technologies, information communications technologies (ICT) form the basis of our routine lives and sit at the core of both economic and social development. Therefore, the advancement of universal access and service is indispensable for the equal and full enjoyment of all freedoms and rights by all and provides for the improvement of the quality of life for all citizens, and further presents a gateway to freeing each person's potential, as envisaged in the Constitution. This is particularly true for the digitally marginalised situated in informal settlements, townships and remote rural areas (Disadvantaged Communities). Notwithstanding the above, statistics show that to date the digital community in South Africa is still very much skewed towards the affluent urban communities, with only 1% of rural households able to access the internet in their homes. Achieving universal access and service in Disadvantaged Communities is a key policy goal in a democratic society such as ours. It is in light of this that this research report presents a multi-method research approach to holistically conclude on the adequacy of the South African regulatory framework to drive the advancement of universal access and service in Disadvantaged Communities, and recommend law reform. This entails a review of the regulatory framework governing universal access and service (in the South African historical background context under the apartheid regime) compared against international best practices on the regulation of universal access and service in Disadvantaged Communities (using the prevailing socio-economic realities in Disadvantaged Communities as guiding principles). The research report findings, taking into consideration the South African historical background and the prevailing socio-economic realities in Disadvantaged Communities, indicate that the South African regulatory framework is to a great extent on par with international best practices on regulation aimed at the advancement of universal access and service in Disadvantaged Communities, barring its unsuccessful implementation. The research report identifies that the unsuccessful implementation of the regulatory framework is largely owing to its fragmentation (i.e., the regulatory framework relies on vast legislation, policies and regulations and different stakeholders for its implementation). Therefore, the proposed law reform constitute regulatory framework structural measures aimed at redressing the identified fragmentation so as to achieve a regulatory framework that adequately facilitates the implementation of the universal access and service objective in Disadvantaged Communities..
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    The development of e-technology at the pleading And pre-trial stage of civil procedure
    (University of the Witwatersrand, Johannesburg, 2023) Ferreira, Marius Salomon
    South Africa has been lodged into embracing the e-platforms since the advent of the lockdown restrictions of the Covid-19 pandemic. CaseLines, and later-on Court Online, have been introduced to the South African judicial adversarial system in the High Court Divisions in Gauteng. Since its inception, the Caselines and Court Online electronic platforms (e-platforms) have undergone numerous amendments to comply with traditional civil procedure. At the same time, the e-platforms are being used to change the civil procedure at the Gauteng Divisions. The purpose of this report is to critically analyse the CaseLines and Court Online e-platforms and the online civil procedure, through the applicable directives in place, as well as the current Rules of Court, in order to determine its effectiveness in South African civil procedure as well as its fairness in the current South African dispensation. The procedure at the High Court Gauteng Divisions is further compared to the procedure at the Labour Court and Commission for Conciliation, Mediation and Arbitration (CCMA), who have both utilised the use of certain online procedures long before the introduction CaseLines and Court Online. The use of evidence on an online e-platform is critically discussed to determine whether it is in line with the current laws involving the admission of evidence in the South African judiciary. The online judicial system in South Africa is critically compared to the current online procedures in the United States of America and in the United Kingdom to determine whether any lessons can be taken from the foreign judiciaries in terms of online civil procedure. Lastly, the report will provide concluding remarks and recommendations to consider for the South African e-platform and online civil procedure.
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    A constitutionalised approach towards consent and private information on social media platforms: adjudicative subsidiarity and the privacy laws of South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Panda, Thabiso
    This research inquiry analyses the concept of consent in a social media context, which is a part of the process which individual users have to undergo when affiliating themselves with online social media platforms. The aim of these platforms is to use, collect, process, share and store users’ private personal information. The analysis engages various legislative frameworks such as the common law, statute, and legislation, to adjudicate issues related to the concept of consent – which ought to be informed. If consent is not informed, this analysis highlights the effect(s), by accentuating its negative implications on the constitutional rights of individual users, such as privacy and dignity. The research inquiry starts by examining these constitutional provisions and is followed by applying a rights-based approach to address the nuances concerning consent on online social media platforms. Furthermore, it considers whether an adjudicative subsidiary can be employed to avoid overextending the powers of the Constitution. The inquiry also investigates infringements related to informational privacy and evaluates the legal framework intended to safeguard user information from anticipated risks on online social media platforms. The purpose of the legal framework, involves interrogating non-constitutional sources against the Constitution – by giving effect to the constitutional right to privacy, as well as in part, dignity. These non-constitutional sources aim to address the potential risks of privacy violations that users may encounter consequent to giving consent when joining the online social media platforms. The act of consenting by users on these platforms allows them to exercise their right to autonomy – which has a significant moral role.
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    Artificial intelligence and automated decision making under the GDPR and the POPIA
    (University of the Witwatersrand, Johannesburg, 2024) Goldman, Gavin David; Zitzke, E.
    This analysis considers the concepts of AI and machine learning and examines their reliance on the processing of personal data and the challenges this poses from a data- privacy and human-rights perspective, particularly in relation to profiling. It evaluates the effectiveness of the General Data Protection Regulation (GDPR) and the Promotion of Personal Information Act 4 of 2013 (POPIA) in regulating Automated Decision Making (ADM) and considers the limitations of the right to an explanation under these provisions. The analysis proposes that the current framework of the GDPR and POPIA does not clearly address the issue of explainability and that the focus should shift to providing a data subject with a counterfactual to give practical effect to this right which would better serve data subjects
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    A practical review of the effectiveness of artificial intelligence in the automated review of legal contracts
    (University of the Witwatersrand, Johannesburg, 2023) Fouché, Jacques Gerrit
    This research report compares the performance of AI-driven automated contract review platforms with that of human contract reviewers, aiming to see improved effectiveness for the elements of time, cost and quality. An empirical study is done by comparing the specific performance of an automated contract review platform provider, Lawgeex, to the human contract reviewers of a business entity, Endress+Hauser. The results of the effectiveness assessment are reported on through dashboard data and questionnaires to the users of the platform. Recommendations are made both in general and specific to the two entities of the empirical study
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    Legal challenges of establishing jurisdiction over cloud data: addressing the gaps in South Africa’s cybercrime legislative framework
    (University of the Witwatersrand, Johannesburg, 2023) Musoni, Melody; Klaaren, Jonathan
    This thesis discusses the problems presented by the emerging technology of cloud computing during cybercrime investigations. One of the main challenges with cloud computing technologies is the lack of clarity on jurisdiction and whether law enforcement agents can exercise unilateral enforcement jurisdiction over remote cloud data. The thesis signifies the challenge by demonstrating how remote access to cloud data can potentially infringe on the sovereignty of foreign states, violate international law, and infringe on people’s privacy rights. The underlying concern with cybercrime investigations in the cloud context is that the current laws are not only territorial, but they are also outdated and lacking the ability to complement and address technological advancements. The central question discussed is whether the jurisdictional principles need to be revised to address innovative technological advancements or if the traditional principles suffice and can continue to be of application. At present, there are diverging views and approaches to dealing with cloud data jurisdiction for criminal investigation purposes. Some scholars, judges and law officers still rely on traditional jurisdictional principles and apply them to cyberspace and cloud environments. They do not see the justification to have separate laws to address activities in cyberspace. However, others advocate for the acclimatisation of new laws to meet the technological changes. Compounding this difference in opinion is the uncertainty in legal frameworks on cybercrime. Such uncertainty has left the topic vacillating between the views of territorialists and those of data exceptionalists. Similarly, South Africa’s position on this issue is unequivocal as various pieces of legislation address the issue of cloud jurisdiction differently. This makes this study of utmost importance. This thesis argues that law should be developed to address the technological changes presented by cloud computing technologies. Traditional jurisdictional principles which emphasise on geographical territory are not sufficient to address the unique features of cloud data. Pre-internet based jurisdictional principles should not be directly applied in cyberspace or cyber-environments. It is important for law to be developed in a manner which allows it to adequately address technological developments. One way of achieving this is by reformulating jurisdictional principles to conform with the emerging technologies. Apart from law, lawyers and law makers should leverage the use of other regulatory modalities such as code to regulate online conduct. Code can play the role of law which can effectively regulate cyberspaces as well as solve the data jurisdictional problem. This thesis supports the notion of reformulation of jurisdictional principles to address these challenges. In addition, it also points out the importance of reinforcing the current measures in place to address jurisdictional challenges