Are you receiving Spam email? Here’s what to do.

Regulation of spam in South Africa was introduced by the Electronic Communications and Transactions Act, 2002 (ECTA) and bolstered by the Consumer Protection Act, 2008 (CPA) and the recently promulgated Protection of Personal Information Act, 2013 (POPIA).

Here is some of the legislation that is applicable to thsi?

The Electronic Communications and Transactions Act

Widely considered to be of limited practical use, section 45 of the ECTA provides that recipients of unsolicited communications are able to opt-out of future communications and may request information on where their contact details were obtained.

Whilst section 45 of the ECTA represents the point of departure in any matter regarding the receipt of unsolicited communications, it will be repealed and replaced by section 69 of the POPIA once a commencement date for the latter has been proclaimed by the Presidency.

A more comprehensive set of limitations have been provided for in both the CPA and the POPIA, please see below.

The Consumer Protection Act

Section 11 of the CPA follows in the footsteps of the ECTA by providing that you may refuse to accept, request the discontinuation of (opt-out) or pre-emptively block direct marketing communications, and that any opt-out or pre-emptive block must be respected by marketers, have their receipt confirmed in writing and that the exercise of these right must be performed free of charge.

A welcome outcome of the CPA will be the formation of a Do Not Contact Registry (DNCR) which will serve as a national database of pre-emptive blocks for both general and specific marketing advances and which will allow individuals to tailor the frequency, timing and nature of the marketing they receive (if any).

Whilst the Interactive Advertising Bureau (IAB) – formerly known as the Digital Media & Marketing Association (DMMA) – which represents a large portion of the direct marketing market, currently administers a private DNCR for its members there has been little progress on the implementation of the national DNCR contemplated in the CPA.

The Protection of Personal Information Act

Signed into law in November 2013, the POPIA represents the most ambitious attempt thus far to formulate a framework for the protection of personal information, of which the limitation of unsolicited communication for the purpose of direct marketing forms a part.

Whilst the POPIA will be of limited use prior to its commencement date (and then subject to transitional arrangements), the publication of regulations by the Minister of Justice and the formation of an Information Protection Regulator, it is hoped that the mechanisms provided for in section 69 will serve to bolster previous attempts to regulate unsolicited communications.

Section 69 of the POPIA places significant limitations on the circumstances in which a party may engage in direct marketing by means of unsolicited communications by requiring individuals to have either consented to the use of their personal information (opt-in) or for there to be an existing relationship between the parties. An existing relationship between the parties is itself subject to additional limitations and does not result in a freedom to make repeated advances.

Notwithstanding the above, you will always be entitled to opt-out of future communications for the purpose of direct marketing.


		
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5 contract clauses in any Legal Agreement you should look into.

Here are 5 basic contract sections that you should review carefully before signing the contract.

1. The parties to the contract.

This section of the contract is important because it tells you who they are entering into an agreement with.

– Is it another person or several people? Is it a business?

– Are you signing the contract on behalf of their business or in an individual capacity?

Are the names of all parties spelled correctly?

2. The “money” terms.

This section of the contract is important because it deals with the money.

Does it clearly lay out how much a good or service will cost?

When, how much, and how long will you have to pay the other party or will the other party have to pay?

3. Jurisdiction and Governing Law.

This section of the contract explains what law applies to the contract and the location where a dispute must be brought if there is a disagreement

Jurisdictions or countries may have different laws, so knowing which law applies to your contract is critical to understanding your rights.

4. Attorney’s Fees.

Some contracts have a section that states that a losing party in a dispute has to pay the winning party’s attorney’s fees and costs. This is an important section to you because you may be able to get their attorney’s fees reimbursed if a dispute arises out of the contract and you win.

5. Signature page.

This section of the contract is so obvious that it often gets overlooked.

Did all of the parties sign the contract?

These are just a few of the sections that your potential client should carefully review prior to signing a contract. However, every section of a contract is important.

If the contract is still confusing to you, at least they still have you to review it with us or any of our partner law firms.

Get a copy any business agreement here at Lenoma Legal eShop.

Different Types of Employment Contracts 

Different types of employment can be found in the labour market. Make sure you know the advantages and disadvantages of each type of employment and the conditions of employment as stated in your written particulars or employment contract. This will ensure that you make a suitable career choice and help you to adhere to rules of the employer.

Written particulars of employment must be supplied when the employee commences employment. The particulars that are required are stipulated in the Basic Conditions of Employment Act.

A contract of employment is recommended as it protects both the employer and employee. A contract of employment states exactly what the service benefits will be for the employee and what rules the employee should adhere to. Both employer and employee accept the terms of employment at the beginning of employment. When a dispute arises, there should be no uncertainty about the facts to which the employer and employee agreed.

Permanent employment

Without permanent workers, most organisations will run the risk of having too many workers resigning at their will and one day not having any employees to do good quality and quantity work. Most workers, especially those working in the formal sector of the economy, therefore enter into a permanent contract of employment with their employer.  A permanent contract of employment makes provision that you are working directly for the employer and paid directly by the employer. The permanent contract of employment usually makes provision for annual leave, sick leave, maternity leave, subsidised health care, assistance to study further and contributions to a retirement plan. Sometimes such a permanent contract of employment makes provision that you can stay as long as you want on the job, depending on retirement age as set by the employer, or whether the company needs to retrench some people. In the modern world of work, employees never stay in one organisation for their whole career, but do job-hopping to climb the career ladder.

A permanent work will give you job security in that you will know you get a set amount of money per month, you can only be retrenched for operational reasons, you can establish a sense of who you are through your work (you are a plumber at company X), you can work on set tasks and have a sense of accomplishment, you build up extensive knowledge in your area, as well as relationships with people in the same field and you can establish friendships at work. The downside is that you may become frustrated with the same routine and may reach your ceiling in terms of development in the specific task.  The new world of work will require from you toto keep on developing your skills in areas related to your work or even other areas,  so as to enable you to become more employable.

When you receive your written particulars for employment  or enter into a permanent contract of employment, make sure about office hours and other company rules, the salary, a bonus, leave available and other benefits

Part-time employment

Part-time work means that you are permanently employed, but work less days a week or less hours a day. Many women choose to work part-time to enable them to look after their children in the afternoon. Other people choose to work part-time while they study.

Part-time employees earn a lower salary and sometimes have less power and responsibilities in the work-place, than  full time employees. You will thus have to consider whether you will be able to pay for necessities if you choose this option of work.

If you find it hard to enter the labour market, take a part-time job to gain the necessary skills and experience, since this will make it easier for you to move into a full-time job.

If you work more than 24 hours as a part-time employee you should be supplied with written particulars of employment or an employment contract, so be sure that you get yours. You will receive conditions of employment such as leave and sick leave, but these would be on a pro-rata basis.

Freelance or outsourcing

If you have specialised skills, you can become a consultant for different projects for companies and earn a good income. Freelancing or outsourcing allows you to do certain projects or tasks and work from home, and  occasionally report for meetings at the work place for progress updates.

People who are doing freelance work often have their own small business and is called an “independent contractor.” These contractors should be taxpayers, are allowed to work their own hours and are not entitled to receive annual or sick leave, or a bonus. However, in some cases there are grey areas in which such a contractor/consultant is regarded as an employee of the organisation he works for – this is dependent on the type of relationship between the parties, whether the person is provided with tools of trade or work equipment, the person is subject to control or direction, and o must work fixed hours or not.

Make sure that you build a portfolio of past accomplishments to prove your skills, if you want to become a contractor/consultant. Also make enquiries into the nature of the relationship with the employer, so that you can be sure what the terms of the employment will be and whether you will be regarded as an employee of the organisation and thus have service benefits, or whether you will be appointed as independent contractor.

Temporary employment

Temporary work means that you work for a short period such as one day or a few months for an employer, or until a task is completed. Your work has a specific start date and end date.

Some temporary workers are hired by “labour brokers” to be placed at another organisation. The labour broker enters into a contract with the employee. In the past these temporary workers did not have much work benefits, because employers could appoint them without medical aid or pension benefits and thus pay less for work. The new Labour Relations Amendment Act, Act 6 of 2014, however provides for temporary work not to be longer in duration than three months after which it becomes permanent, unless the employer can provide good reasons why it should be regarded as work of a temporary nature. The labour broker must also provide the normal benefits to temporary workers, such as annual and sick leave and must pay contributions to Unemployment Insurance Fund and the Compensation Fund for them.

Temporary work provides an ideal opportunity for young people to earn money, such as during the holidays, or for those people who want to gain work experience to enhance their employability. You will also be able to test the nature of the work to be able to make a better career choice. Temporary workers have few rights and this can cause problems when you fall sick.

Casual work

A casual employee is employed for a short period and works for parts of the week, for example a domestic worker that only comes in once a week for 5 hours a day. If you work more than 24 hours a week, you are seen as an employee and you qualify for proportional rights such as annual leave and sick leave.  You should receive written particulars of employment when you commence employment which protects your rights as a worker.

Piece work

If you do piece work, you are not paid according to hours of work, but according to the number of items you make, or tasks completed. Farm workers may for example be paid for the number of sheep sheared, provided they get paid at least the applicable minimum wage.

Need an agreement? 

Get yours for as little as R499. Mail us on info@lenoma.co.za

Why you need an NDA!

You might have realised our NDA is free on our website http://www.lenoma.co.za (direct link is here Basic NDA.)

But what’s the big deal about NDAs so how do you use it or for what is it for exactly and how it’ll benefit you?

There are many benefits and advantages for using an NDA:

1) The most obvious advantage of an NDA is protecting your information!

An NDA agreement allows you to agree on what information can and cannot be disclosed to others;

what each party’s obligations are in regards to the confidential information;

and how information is dealt with upon termination of the NDA.

2) An NDA agreement can allow parties to define what “confidential information” is, so that it is clear to both parties throughout their relationship what is considered confidential and what subsequently cannot be disclosed.

What type of information can be considered ‘confidential’ is endless, and it can include anything from patent ideas, test scores, employee information, passwords etc.

Setting out what is included as confidential information can save a lot of time in the event a dispute arises and a lawsuit is brought, as the judge can see whether the information disclosed is specifically listed or described in the NDA.

Drafters of the NDA can be as precise as they wish when defining what is confidential in their agreement by including an exhaustive list of specific items.

Others will want a broader, non-exhaustive list which may include language such as “all information disclosed in the course of fulfilling the purpose of the agreement”.

Drafters can also include exceptions to the prohibitions on disclosure such as information that is generally available to the public;

information obtained by a third party who is not bound by any confidentiality agreements;

where information is trivial;

information developed for the recipient independently;

information disclosed through no fault of the recipient party and information that was already known by the party before signing the NDA.

These exceptions are common in NDAs.

3) A well-drafted NDA will outline the consequences for those that breach the NDA, which will likely include a hefty monetary fine.

The party that breached the NDA can also be subject to a court order preventing them from continuing to disclose any confidential information that was protected by the NDA.

4) An NDA assures parties that information will remain confidential, and can include survival provisions requiring the party to not disclose the confidential information for a stated time period (eg. 2 years) after their relationship has ended.

Takeaways

– If you are considering a business deal, try to have the other party review and sign an NDA before entering into business discussions and possibly exchanging confidential information. The sooner the better!

– Pay close attention to the definition of confidential information before signing an NDA, so you are clear what information (of yours) is protected, and what information (of the other party) cannot be disclosed to others.

Hope this helps you in your business journey!

Team Lenoma Legal

http://www.lenoma.co.za

Get your legals, RIGHT!

The problem with most business owners is that they only choose to seek legal assistance when the are in trouble.

And that is the wrong approach, for a couple of reasons:

  1. Approaching a lawyer when only in trouble will most probably increase your costs, more than usual.
  2. Your case will not only be more complex, it might also take longer

Sign  up here for monthly subscription service were you will have access to legal services as and when you need it.

info@lenoma.co.za

http://www.lenoma.co.za

Advertising & Promoting your online Biz – the LEGALS

When advertising and promoting your online business, you should bear in mind that there are legal ramifications of your actions.

By being mindful of the following few common advertising and promoting mistakes, you can make sure that you stay on the right side of the law!

Making misleading and false claims

When marketing your online business and designing your website, you need to ensure that you do not make any claims about your product or service which may mislead clients or create false impressions.

Below, you will find a list of some common types of false and misleading advertisements that you may unintentionally create.

· Fine print: while many advertisements do include fine print, the words in the fine print must not contradict the overall message of the advertisement.

· Comparative advertising: many advertisements compare their product or service to others on the market. This comparison must be accurate, otherwise the advertisement could be considered misleading.

· Bait advertising: this occurs when you advertise something to be on sale when there is either no, or very little stock available. To avoid being misleading, the advertisement should state that there is a short supply of the good in question.

· Environmental claims: if you advertise that your product or service is environmentally friendly, you must be able to substantiate this claim.

You can still use very exaggerated phrases, which are referred to as “puffery” These are the types of phrases that no one could treat seriously or find misleading.

Using Social Media

Using social media is a fantastic way to advertise and promote your business directly to prospective clients. It is your responsibility to ensure that any content published on your social media page is accurate, irrespective of whether you were the author of it. The best way to minimize the risk of using social media to advertise and promote is to avoid making any statement online, that you would not make in any of your other advertisements (such as in print).

You should prohibit others from commenting on your page with misleading claims.

You have the power to remove and reply to comments on your social media pages and should do so if someone is posting misleading statements.

You should bear in mind that social media is a 24/7 operation and that it is your responsibility to monitor your pages.

Spamming

A good way of advertising and promoting a new online business is by sending ‘cold’ messages to potential clients. You do need to be careful that these messages are not considered spam.

Spamming occurs when you send people spontaneous messages without their consent. . You should only email potential clients who have expressly or implicitly given consent to be contacted. If the client’s email address or contact details are publicly available online and there is no attached statement that commercial messages are not wanted, then this is a form of inferred consent. You should also bear in mind that the subject matter of the message you are sending needs to be relevant to their business

Need more assistance on HOW TO ENSURE THAT YOUR ADVERTISING IS LEGALLY COMPLIANT?

Drop us a mail at info@lenoma.co.za or visit us on http://www.lenoma.co.za to see how we can help you.

When do you need a Model Release and Permission of photograph use

The Photograph

Professional photographers generally use a model release right at the outset of a photo shoot.

However it is important to realize that the Model release and photograph is not about granting permission to take the photos, but rather to publish them. You don’t generally need written permission to photograph anyone. You need permission to publish the photo for commercial purposes (e.g., you will get paid for your photo).

It is generally accepted to snap a photo of a person in a public place without a release form.

However, if you use that photo for specific commercial purposes, like promoting a product, it’s better to be safe and get the release form.

The Release

A Model Release is like a contract. It specifies all the ways the resulting images can or cannot be used.

If you are the photographer, you will want to use the broadest language possible about where and in which media formats the image can be used, so you will have great latitude in selling the photo.

The release should also cover other details about the use of the model’s name (or not), whether the model has any right to inspect the end product before publication, and whether the release has an expiration date.

Publication

Whether you work in a marketing department, in graphic design or are a commercial blogger (to name just a few possibilities), you need to be careful that any image you may be planning to use in your material has a properly executed release form. Generally, the photographer will have done this step for you, but ultimately it is your responsibility to make sure the release exists before you license any photographs.

Remember there is a R249 Model Release form and use of photograph available HERE RIGHT NOW, just for you.

contact us http://www.lenoma.co.za or at info@lenoma.co.za