technology, media and telecommunications (TMT)
BY Ridwaan Boda , Rakhee Dullabh AND Daniel Mwale
South Africa: digitisation in the time of COVID-19
The coronavirus (COVID-19), has presented novel challenges for organisations in all sectors of the economy. Irrespective of the external circumstances faced, organisations are being forced to find a way to ensure that they still remain in business. Technology is able restore economic equilibrium and ensure companies remain competitive by:
- maintaining productivity and ensuring business continuity;
- data management, document filing and record keeping;
- online educational materials and platforms; and
- efficient and instant communication.
It has become imperative for organisations to find and implement technological solutions that will achieve the above and ensure productivity. If you are contemplating procuring technologies to enable digitisation, then you should consider the following:
COVID-19 Regulations: websites, false information and other requirements
- In South Africa, Regulations:
- require that all .za websites, including any website operating with a .za top level domain name, contain a visible link on its landing page to the national COVID-19 website: sacoronovirus.co.za. We interpret the directions to require all websites that fall under the .za domain name administration (including .co.za; .org.za; ac.za) to comply with this requirement as soon as is reasonably possible;
- impose liability on parties spreading false information;
- designate certain ICT services as being essential services; and
- impose specific requirements on the telecommunications sector.
- Read more in our previous ENSight.
Sound corporate governance and the importance of negotiating agreements
- Do not accept terms and conditions when procuring technology without first understanding the obligations imposed on you.
- Negotiation is fundamental as it allows you to mitigate your risks as a customer.
- Understanding and unpacking your business needs and requirements is essential when it comes to negotiating. Do not underestimate the importance of effective negotiating.
- Remember, a crisis is no excuse for organisations flouting basic rules of sound governance and IT procurement.
- It is possible to fast track IT procurement without taking on unacceptable risks.
- Contracting smartly and efficiently means understanding the risks associated with the applicable services/technology against the impact such risks will have on the organisation.
- Fast contracting is most effective with streamlined templates, clear escalation processes, and properly trained staff of the legal contracting process.
Cybersecurity and privacy
- This is one of the most significant risks faced by organisations when procuring IT, and when accessing IT remotely. Read more in our previous ENSight.
- Clear obligations should be placed on service providers to protect and secure the integrity of information to prevent unauthorised access, loss, damage and destruction of data.
- Corresponding warranties and indemnities should also be included in contracts.
- Also, do not forget about data privacy: with new technologies, even popular platforms, always understand the privacy risks before procuring any new technology.
- Service levels are arguably one of the most fundamental aspects of any technology contract.
- A well-crafted technology contract ensures that services are maintained at the levels agreed for the duration of the contract.
- Service levels, coupled with service credits, provide recourse for instances when the service is down or unavailable, when problems aren’t resolved timeously, and when recurring problems persist.
Back-up of data
- Irrespective of the size of an organisation, workforce, or client network, ensuring that appropriate and regular back-ups are performed by catering for these provisions in contracts are essential to business continuity.
- Contracts should clearly define which party is obligated to perform backups, how often they should occur, what data and information should be backed up, and how such data can later be recovered.
- In the unfortunate event of a disaster, you need to be comfortable and confident that your organisation will be able to continue being functional and operational.
- Knowing that your service provider has an effective disaster recovery strategy provides comfort and certainty that your organisation can quickly resume critical functions following a disruption.
Limitation of liability
- The duration of the contract, service fees payable and the type of services rendered should be considered when assessing a limitation of liability clause.
- A cap limiting the exposure of both parties can be useful.
- Importantly, exclusions in respect of limitation of liability clauses should always be included, especially for gross negligence, wilful misconduct or misrepresentation.
For more information and assistance in fast-tracking your companies digitisation process, or for help in navigating the various regulations and their impact on your business, please contact:
Technology, Media and Telecommunications | Director
+27 83 345 1119
Corporate Commercial | Senior Associate
+27 82 509 6565
Corporate Commercial | Trainee Associate
cell: +27 63 361 0795
COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.
No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.