April 2006Copyrighted Work- ADAM MAMBI 1 CYBER LAWS WORKSHOP FOR EAC, 24-28 April 2006, Kampala. The Status of Cyber Laws in Tanzania. Presenter; ADAM.

April 2006 Copyrighted Work- ADAM MAMBI

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CYBER LAWS WORKSHOP FOR CYBER LAWS WORKSHOP FOR EAC, 24-28 April 2006, EAC, 24-28 April 2006,

Kampala. Kampala. The Status of The Status of Cyber Laws in TanzaniaCyber Laws in Tanzania..

CYBER LAWS WORKSHOP FOR CYBER LAWS WORKSHOP FOR EAC, 24-28 April 2006, EAC, 24-28 April 2006,

Kampala. Kampala. The Status of The Status of Cyber Laws in TanzaniaCyber Laws in Tanzania..

Presenter; Presenter; ADAM MAMBIADAM MAMBIState Attorney (Head legal State Attorney (Head legal

Research Dpt.)Research Dpt.), The Law Reform , The Law Reform Commission ofCommission of TanzaniaTanzania..


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Emerging issues that EAC need will to consider for the

establishment and implementation Legal frame

framework for ICT and E-Government

• The impact of ICT on the Laws, economy and the Society.

• E-Commerce/E-government• Barriers to the commercial

exploitation of ICT (e.g.-Commerce)• Cyber Crimes. Definition of Theft

under digital era?


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• E-evidence, e-signatures/Evidential Status of electronic documents.

• Jurisdiction problem on cyber space

• Extradition treaties on cyber space• Are we E-EAC or off-line-EAC?


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E-Commerce and the Status of Cyber Laws in

Tanzania• The technology has brought

fundamental changes in the way commerce takes place The impact on the use (EDI)

• E-commerce is growing explosively


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The Current Legal system in Tanzania

• Transactions that are paper based methods.

• The e-transactions hindered by legal obstacles( written documents manuscript signatures, authentication in transactions).

• Contracts to be made by deed in writing and evidenced using original documents


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• laws designed to facilitate paper-based transactions.

• Lack of Regulatory steps to secure e- transactions such as digital signatures, e-government

• Lack of e-dispute settlement mechanisms• Should we apply 1800s Postal Rules on e-

communications? [Adams v. Lindsale] 1818


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Exceptions to written, and signature requirements

• Contracts for licensing and assignments f copyright, creation of transfer in title deeds , Wills and trusts , negotiable instruments, and Bill of lading.


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Some e-Laws recognizing exceptions

• The UK CDPA 1988• The Law of Property Act 1989• Marine Insurance Act 1906• Consumer Credit Act 1974


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Jurisdictional Problem on Dispute settlement!

• Under cyber space with boundary less where things happen?

• When and where the contract is actually made?

• When communication of offer/acceptance is deemed to be effective forming a contract?

• Are we able to point out the time and the place where the contract is made electronically?


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• Do we still need to apply Postal rule?

• Which legal system will apply?• Which court will have

jurisdiction?• Who are relevant law enforcers

in cyber crimes?


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ADR vs ODR Laws govern ADR of-line {Arbitration Act,

Civil Procedure Act) 1967) Online Dispute Resolution (ODR) for

cyberspace/Internet disputes and offline disputes is growing through Website Mediation and negotiation services (cyber mediation & negotiation).

Using Sophiscated Software and a Neutral Third Party

See http:/www.cybersettle.com, www.settlementonline.com and www.clicknsettle.com


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• How can we incorporate ODR /e-ADR in our e-government strategies and Laws?

• Do we have laws that recognize e-justice and cyber courts?


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Off-line Auctions vis-à-vis On-line auctions

• Sale by auction is complete when the auctioneer announces its completion by the fall of the hammer

• With on-line-auction it is the time that matters.


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Digital/Electronic Signatures:

• E-Commerce has brought a revolution on a paper based signatures to digital or e-Signatures

• E-Signature means Data in electronic form in, affixed to or logically associated with, a data message.

• Laws in Tanzania do not recognize e-signatures


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• Identity and identification on the Internet

• Capacity to contracts (Minors not allowed)

• “On the Internet no body knows you are a dog" (Reed, Interne Law page 119):


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• Business Laws-contracts to be made or evidenced in a particular way namely:

• By deed, under seal and writing.• be signed before a witness.• Be evidenced with original

documents


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• Retention of information in a manual filling system.

• Keeping written documents• Barrier in implementing e-

government


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Suggested Solutions• Enact/amend our laws in line with

UNCITRAL and CMW Model Laws requirements for functional equivalence.

• Articles 6UNCM/7(CWL) (writing), 7UNCM/9(CWL) (Signature), 8UNCM/6CWL(Original),9UNCM/3(CWL)(Admissibility and evidential weight of data message/e-evidence) and 11 of UNCITRAL Model Law on E-Commerce 1996-1998


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• Article 6UNCM/9CWL(e-/digital Signature) and 12 of UNCITRAL Model Law on E-Signatures

• While other countries legislation which reflect UNCITRAL Model Laws some countries like Tanzania, Kenya and Tanzania have still off-line laws.

• Where are we?


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Consumer protection Under distance Contracts and e-

banking; • There is a practical danger to

consumers who buy goods or services on-line.

• Most Laws protect consumers on off-line business only.


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E-PAYMENTS/E-Banking

• E-Banking.• Most Banks and other financial

institutions have introduced ATMs Cards and other related Cards.

Most laws regulating this area are not in tune to e-banking, calling for further reforms.


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• Is the use of credit/debit cards is safe, risk less?

• Negotiable instruments• Are the definitions of bill of exchange and

cheques affected by e-banking? Definition of Bills of Exchange• “An unconditional order in writing, addressed

by one person to another, signed by the person giving it….


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• An endorsement in order to be a negotiation must comply with the following conditions, namely-

• (a) it must be written on the bill itself and be signed by the indorser

• and the simple signature of the indorser on the bill, without additional words, is sufficient.


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Taxation under e-commerce

• Impact of e-commerce on Taxation system • Tax principles of source, residence and

jurisdiction affected by e-commerce. • Under digital technology digitized goods

can be delivered electronically which pose a challenge on taxation system.

How can we assist Tax collectors?Where and where taxes can be

collected?


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Issues to be considered under e-taxation!!!!

Where a business is to be regarded as established for fiscal purposes?

Where income is earned in one country by an individual resident or undertaking established in another country where taxes fall due to be paid.

How can we avoid double taxation and prevent fiscal tax evasion?

How can we reform our Tax laws to cope with e-developments?


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International harmonization on e-

taxation• OECD Model Tax Convention

provides the basis for more than 1,500 bilateral treaties between states providing for tax arrangements regarding each other’s nation.

• Are we part of this Convention?• How far is it useful?


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THINK ABOUT THESE!•E-commerce unleashed and

unbowed? (Turban E., Ecommerce 2002)

• What are the impact of internet on the way we live, work and think?

• The future has just happened!!!


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Data Protection and Privacy

• Are we assured with security under our computer systems?

• Do we have any legal framework on database and data protection?.

• Can the personal data and confidential information flow freely.

Balance between the right to privacy and public interest

Can the data processing techniques pose threat to the rights and freedoms of individuals.


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Intellectual Property Rights and Digital

Technology • Digital infringement of IP rights

such as Copyright and domain names cybersquating

• Impact of ICT on IP Laws.• E-Publishing and digital

infringement of IP Rights. Software and web piracy


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(ISPs &OSPs) liability on

digitised services. • The relevance of IP the New Media/ICT.• Off-line IP Laws • The Role of ISP on digital infringement of IPRs.• ISPs and other on-line service providers can

be secondarily held liable as facilitators for the infringement of copyrighted materials online.

•


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MP3—Peer 2 Peer File Sharing.

• MP3 music files under e-commerce has great impact on Copyrighted work.

• MP3 is a file that stores compressed music file.


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• Do current Copyright reflect digital infringement of copyrighted works?.

• Are there digital infringement theories developed under NAPSTER Case?. Consider the US Digital Millennium Copyright Act.

• CDPA(UK) 1988


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Internet Domain names

• Domain names are Web or Internet addresses used by web servers to identify each other on the Internet. ICANN responsible for administering Internet Domain names.

• Are we ruled or bound by California Laws?

• Do we have laws to regulate this area (cybersquating)?


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Other jurisdictions• The US has enacted the US Anti-cybersquating

Consumer Protection Act (ACPA) for regulating Domain names. .

• Example of domain names disputes case of Prince Pl v. Prince Sportswear Group Inc[1998].

• The UK had also experienced the conflict on domain names in Pitman Training Ltd v.Nominet UK [1997)and Mark & Spenser plc v.One in a Million Ltd[1998] Dispute on multiple trademark holders Nissan Motor Co.v. Nissan Computer Corp.


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Impact of ICT on Criminal Law;

Cyber or Computer crime

• Computers technology has impacted criminal law in two main

ways.

It can facilitate the commission of crimes such as fraud and theft

created new range of activities/offences such as computer hacking and the development and distribution of computer viruses, unsolicited emails and hacking.


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Hacking unauthorized access to computer

material.Threat by Hackers

• serious threat to the security of computer systems

• read or copy confidential information, • erase or modify information or programs • download programs or data, or add

something, • Steal money or direct the computer to have

goods sent to him.


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See Re v. Levin [1997] QB 65.The applicant in St Petersburg to access to Citibank's computer system in New Jersey and transferred money. He was arrested in the UK and US sought extradition.


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Computer Viruses and time bomb;

• Creation or dissemination of computer viruses. Misconduct in computer field

• A virus will typically be transferred from one system to another through either disks or storage devices.


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Fraud and theft under digital technology

• Stealing money or property by means of a computer

• Using a computer to obtain dishonestly, including money and cheques or credit or services or to evade dishonestly some debt or liability.

• Obtaining property e.g. money by deception; Definition of Theft under the current Laws

(permanently depriving some ones tangible property) .Does this cover theft using computers? e.g. intangible property rights?


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Spamming• This unsolicited emails on the Internet

normally sent by e-bussines trying to advertise and sell goods and services. This can block ISPs Services.

• A trespass to other IPRs. eg. trade marks and Domain names.

• In the US There has been more than 20 cases.


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Computer Pornography:

• Recording and transmission of images and texts on digital media different from paper or video tapes.

• Digitization, transmission, upload and download obscene sexual images and fantasies over the Internet.

• Children are more vulnerable on the impact of these obscene materials.

• Current Laws not effective in combating these crimes


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• Consider the following issues• How can we control/regulate on-line

transmission of obscene, indecent material and defamatory information?

• Who are the “new actors in the new Stage”?.

• Opt to intermediary liability?


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• Most laws do not accommodate cyber crimes.

• laws does not provide cyber crime offences such as computer frauds, theft, piracy and the prosecution thereof.


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Reliability and admissibility of Computer

Evidence. • Most Current Evidence statues are

derived from Common law using “BEST EVIDENCE RULE”.


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In Tanzania The Evidence Act, 1967 does not provide room for the admissibility of computer/electronic Evidence.

The best evidence under this law is the primary evidence which in most cases will be the written, and signed or authenticated documents.

.


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The Role of the Judiciary in Tanzania

The lacuna on the admissibility of electronic evidence was tested by the High Court of Tanzania (Commercial Division) in the case of Trust Bank Ltd. v. Le-marsh Enterprises Ltd., Joseph Mbui Magari, Lawrence Macharia(No.4 of 2000 (Unreported)


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What do we learn from this case

• Although the laws in Tanzania do not recognize computer evidence as original, the case has put paper based evidence and e-evidence in equal footing weight.

• The Judge urged that in the absence of e-laws (emphasis added) the court will find way of dispensing justice even in difficult circumstances of absence f legal guidance.


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the question before Judge Nsekela was whether Computer/electronic Evidence is admissible in our Courts under our Laws.


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Impact of Court Decision:

• E-Evidence admissible under our courts.

• Departure from strict application of “BEST EVIDENCE RULE”


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Integrity of computers and electronic records

system.• How can one proof the integrity of

computers computer generated information and computer print-out.

• Can “the best rule” apply in electronic evidence?


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Jurisdiction problem • Which legal system will apply when dealing

with cyber crimes?• Which court will have jurisdiction?

• The cyberspace has no boundaries. A crime can be committed anywhere in the world. Which country has the right to arrest offenders and prosecute?

• Do we need Extradition treaties for all countries in the world?


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GOVERNMENTS INITIATIVES THE LAW REFORM COMMISSION OF TANZANIA

Response on the impact of ICT • LRCT has undertaken a review and

research on the e-commerce and Cyber crimes area and come up with the recommendation which will lead to the enactment of the laws that will regulate this fast growing area.


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Proposed Draft Bills by The Law Reform

Commission of TanzaniaFour Proposed Draft Bills based

on Functional equivalence were prepared from the final Report on E-Commerce and Cyber and Computer related crimes.

The Final Report plus the proposed Draft Bills to be submitted to the Minister of Justice and Constitutional Affairs.


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1. ELECTRONIC EVIDENCE BILL

Cross cutting issues addressed;– Recognition and admissibility of electronic

records as evidence equivalent with the “best evidence rule”

– Giving due evidential weight information in a form of data message.

– Admissibility of e-Signatures– Burden of proving authenticity of e-records.– Presumption of integrity of e-records


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ELECTRONIC TRANSACTION AND

COMMUNICATION BILL

Cross cutting issues addressed;– Writing requirement met by e-

Information/data message– Handwritten signature satisfied by e-

Signature– Production/retention of original

documents satisfied by e-documents


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– Recognition of e-contracts & e-communications.

– Determination of time and place of sending and receiving e-communications

– Recognition of foreign e-Documents / e-Signatures


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– Notarisation, acknowledgement and certification met by e-Signatures, establishment of Authentication Authority on e-signatures etc

– e-Government service delivery – acceptance of electronic filing; application; payment; digital signatures; e-publication / e-Gazette; etc.

– Administration of country-code Top Level Domain


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• Establishment of Authentication Authority

• Accreditation Authority• Authentication Service providers• Establish register of Cryptography

providers• Establishment of domain name authority


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CYBER AND COMPUTER RELATED CRIMES BILL

Cross cutting issues addressed;– Illegal access and interfering with computer

systems– Use of illegal devices– Interfering with data and computer system– Publication of immoral & obscene materials

(eg. obscenity, inciting hatred, harmful to children, etc.)


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– Production of computer viruses, worms, logic bombs, etc.

– Powers of authorised officers to search & seize computer systems/e-devices and access data

– Powers of authorised officers to prosecute cyber-crimes

– Cyber Inspectors and their powers


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DATA AND PRIVACY PROTECTION BILL.

• Cross cutting issues addressed;– Collection, use, disclosure and retention of

personal information– Limits on the use and disclosure of personal

information– Storage and security for personal

information– Retention and disposal of personal

information


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– Principles of data protection and consumer rights

– Powers of Minister to make regulations

– Establishment of the Office of Data Protection and Privacy Commissioner


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General Exceptions on e-principles.

• Contracts for licensing and assignments f copyright, creation of transfer in title deeds , Wills and trusts created by wills, negotiable instruments, and Bill of lading.


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Concluding RemarksHaving realized all cross cutting

issues which seem to be barriers for e-commerce and e-government implementation, there is a need of having harmonized and uniform Legal framework on ICT within EAC.

Need for benchmarking from other countries with legal framework on ICT


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Consideration of UNCITRAL Model Laws and Commonwealth Model Laws on E-Commerce and E-Signatures

Lets make our law enforcers to be e-enforcers

Have e-courts


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The End Thank you for you Attention!!• Adam Mambi, • State Attorney (Head Research Department), • The law Reform Commission of Tanzania:• Expert on Cyber Law/ICT Law,

Intellectual Property Law, Competition Law and Environmental Law.

• Email: [email protected] • Mobile Phone: +255(0)741291302

April 2006Copyrighted Work- ADAM MAMBI 1 CYBER LAWS WORKSHOP FOR EAC, 24-28 April 2006, Kampala. The Status of Cyber Laws in Tanzania. Presenter; ADAM.

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