E-Transactions Comparative Law Analysis - ITU · E-Transactions Comparative Law Analysis Presentation at the ... SKN ELECTRONIC TRANSACTIONS ACT 2011 “certificate” means a data

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E-TransactionsComparative Law Analysis

Presentation at the

Government of St Christopher and Nevis and HIPCAR Stakeholder Consultation Workshop

on Electronic Transactions Basseterre, 20-21 August 2012

This document has been produced with the financial assistance of the European Union. The views

expressed herein can in no way be taken to reflect the official opinion of the European Union.

Certificates

In order to meet the principles of technological neutrality and of functional equivalence, it seemsimportant to acknowledge that certificates shall not necessarily be electronic (as in Public KeyInfrastructure – PKI structures), and may rather be issued in non-electronic form. This may ensure thatpublic bodies and public notaries are also recognized a certification/attestation role with regard toelectronic records, not limiting it to e-notaries. Progressive digital inclusion is a maturity process, and itincludes a mix of electronic and non-electronic capabilities at intermediate stages.

HIPCAR MODEL

EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012

UNITED NATIONS

CONVENTION(…)

SOUTH AFRICA ECTA 2002 (SAECTA)

SINGAPORE ETA 2010 (SIETA)

TRINIDAD AND TOBAGO 2011

ETA (“TTETA”) & ETR ( “TTETR”)

SKN ELECTRONIC TRANSACTIONS ACT 2011

“certificate” means a data message or other record

confirming the link between a signatory and the signature creation data;

“certificate” means an electronic attestation issued by an approved certification service

provider that

(a) links signature-verification data to a person and confirms the identity of that

person; or

(b) links time-verification data to an electronic record or to an electronic

communication and confirms the associated date and time of that electronic record or

electronic communication;”

Electronic Commerce

Definition of electronic commerce as comprising producer to final user relations may not be seen ascomprehensive enough, where the Bill goes beyond typical supplier to consumer deals, encompassingliability before third parties. Inclusion of a provision establishing that users exposed to public offeringsshall be deemed as equivalent to consumers, or defining electronic commerce as direct or indirectconsumer relationships, might be advisable.

HIPCAR MODEL LEGISLATIVE TEXT ON

ELECTRONIC TRANSACTIONS

EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012

UNITED NATIONS CONVENTION

ON THE USE OFELECTRONIC

COMMUNICATIONSIN

INTERNATIONAL CONTRACTS



TRINIDAD AND TOBAGO

2011 ETA (“TTETA”) &

ETR ( “TTETR”)


“electronic-commerce

service provider” means a

person who uses electronic

means in providing goods or

services or both;

“electronic commerce” means the ability to conduct commerce

which deals with the exchange of anything of economic value, goods, services, information or money from producer to final consumer to satisfy

their needs using electronic

communications and digital information

processing technologies;

Electronic Communication

The term “electronic communication” has been largely used, such as in UNCITRAL’s Convention “ElectronicCommunications in International Contracts” (hereinafter, UNCITRAL’s Convention), and in South Africa’sElectronic Communications and Transactions Act 2010. The merging of information and communicationstechnologies, represented by the acronym ICT, confirm the importance of recognizing that. In order tomaximize compatibility with such international benchmark and with such widespread reality, inclusion of adefinition on electronic communication might be advisable (also, for the reason that the definition of“electronic transaction” in the Bill refers to “communications”).



EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012



COMMUNICATIONSIN INTERNATIONAL

CONTRACTS



TRINIDAD AND TOBAGO 2011 ETA (“TTETA”) & ETR (

“TTETR”)

SKN ELECTRONIC

TRANSACTIONS ACT 2011

“Electronic communication” means any transfer of records by means of signs, signals, writing, images, sounds, data, or intelligence of

any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photo electronic or photo optical system that affects interstate or foreign

commerce, but does not include:

a. any wire or oral communication;

b. any communication made through a tone-only paging

device; or

c. any communication from a tracking device.

“electronic communication

” means information

which is communicated,

processed, recorded, displayed, created, stored,

generated, received or

transmitted by electronic means;

“Electronic communication”

means any communication that the parties

make by means of data messages;

Data

The definition of “data” is essential for regulation of electronic transactions, as datadigitally represent the records of such a transaction. Being so, it is important to avoidconfusion with different possible meanings of data, such as information contents(ex.: statistical “data”) and information processing (ex.: “data” processing, asperformed by “data” bureau providers).

Therefore, since “data” (digitally) represents information, and is not a particle of it,the definition of “information” shall not quote “data” amongst “text”, “image”, and“sound”, as the latter constitute information, while “data” represent information.“Data” may include electronic “documents, records”, “codes, computer programs,software and databases. In other words, information is the immaterial, while data isthe (electronically) material.

Also, the definition of “electronic form” is not necessary, as data is essentiallyinformation in electronic form. Avoiding redundant definitions help avoid confusinginterpretation.

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UNITED NATIONS

CONVENTION(…)



TRINIDAD AND TOBAGO 2011 ETA (“TTETA”) & ETR

(“TTETR”)

SKN ELECTRONIC


“Data” (or “computer data”, or

“electronic data)” means

any representation

of facts, information or concepts in a form suitable for processing

in an information

system, including a program

suitable to cause an

information system to perform a function.

“Data message”

means information generated,

sent, received or stored by electronic, magnetic, optical or similar means,

including, but not

limited to, electronic

data interchange,

electronic mail,

telegram, telex or

telecopy;

(TTETA) “data” means the content including but not

limited to the text, images or sound which make up a

data message;

(TTETA) “data message” means any document,

correspondence, memorandum, book, plans,

map, drawing, diagram, pictorial or graphic work,

photograph, audio or

video recording, machine-readable symbols

generated, sent, received or stored by any electronic means by or on behalf of the person it represents;

“data” means any

representation of facts,

information or concepts in a form suitable for processing

in an information

system, including a program

suitable to cause an

information system to perform a function;

Electronic Government

Having the Bill dedicated Part III to “E-government services”, it seems advisable to include a definition on“electronic government” (or, “e-government”), and ultimately, on “public body. Firstly, because electronictransactions involving government usually differ in many aspects from electronic transactions involving privateparties, only. This is true where government has its own system of electronic signatures and of accreditation ofits certification. Secondly, because it is import to clarify what parties are comprised within e-governmentactivities (for instance, would private vendors acting on behalf of government qualify as “e-government”? would“e-government” be limited to direct public administration or extend to indirect public service (mixed-economyenterprises, individual delegated activities) as well?).

Thirdly, because some international or national laws have addressed “electronic governance”, which,conceptually, is not a privilege of “government”, assuming the essence of “governance” (as in the sense of“corporate governance”, or of “ICT governance”) exists irrespectively of public or private applications, therefore“electronic governance” does not necessarily mean “electronic government”.



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CONVENTION(…)


SINGAPORE ETA 2010 (SIETA)TRINIDAD AND TOBAGO 2011 ETA

(“TTETA”) & ETR ( “TTETR”)

SKN(…)

“Public body” means:

a. ministry or department of government;

b. wholly or partially owned state companies

or enterprises;

c. bodies exercising statutory authority, of

legislative, executive or judicial nature;

d. sub-national or local public authorities,

including municipalities.

“public authority” means any Ministry,

department, agency, board,

commission, local democratic organ or other body of the Government and includes an entity or body

established by law or by arrangement of the Government or a Minister for a non-commercial public service

purpose;

(TTETR) “Electronic government” means the

electronic performance or provision of government activities and services;

(TTETA) “public body” means

(a) Parliament, a Joint Select Committee of Parliament or a committee of either House of

Parliament;

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SKN(…)

(b) the Court of Appeal, the High Court, the Industrial Court, the Tax Appeal Board or any court of summary jurisdiction;

(c) the Cabinet as constituted under the Constitution, a Ministry or Department, Division or Agency of a Ministry;

(d) the Tobago House of Assembly, the Executive Council of the Tobago House of Assembly or a division of the Tobago House of

Assembly;

(e) a municipal corporation established under the Municipal Corporations Act;

(f) a statutory body, responsibility for which is assigned to a Minister of Government;

(g) a company incorporated under the laws of Trinidad and Tobago that is owned or controlled by the State;

(h) a Service Commission established under the Constitution or other written law; or

(i) a body corporate or an unincorporated entity in relation to any function that it exercises on behalf of the State, or which is

supported, directly or indirectly by Government funds and over which Government is in a position to exercise control;

Electronic Record

The definition of electronic record shall go beyond its “processing” and “maintenance”. Electronic recordsare important for electronic transactions also regarding their creation (which may determine the date ofan element of the transaction), storage (associated with liability for properly keeping transaction data),and communication (essential for understanding whether some transaction data were delivered, orreceived), therefore they shall be added to such definition.



EGRIP ELECTRONIC

TRANSACTIONS BILL

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UNITED NATIONS

CONVENTION(…)



TRINIDAD AND TOBAGO 2011 ETA (“TTETA”) & ETR (

“TTETR”)

SKN ELECTRONIC TRANSACTIONS

ACT 2011

“Electronic record” means a set of data that is created, generated,

recorded, stored, processed, sent, communicated, and/or received,

on any physical medium in or by a computer or other similar device, and that can be read or perceived

by a person by means of an information system or other

similar device, including a display, print-out or other output of those data. For the purposes of this Act,

electronic record refers to information in general, and

transaction record (or record of a transaction) refers specifically to

transactions (either commercial or non-commercial).

"electronic record" means

a record generated,

communicated, received or stored by electronic

means in an information

system or for transmission

from one information system to another;

(TTETA) “electronic

record” means a record created,

stored, generated, received or

communicated by electronic

means;

“electronic record” means a record processed and maintained

by electronic means;

Electronic Transaction

What fundamentally differentiates electronic transactions from non-electronic transactionsis, from the outset, the electronic character of their documents and/or communication.The definition of electronic transaction shall not miss that the communications at hand areelectronic.

Also, the kind of “communication” involved may transcend regular electroniccommunication (data messages). For instance, by clicking “Accept” on a web site, a usermay “communicate” his acceptance of certain transaction. In such case, to what extent aclick may be considered as a message, and ultimately, as communication? This mayreinforce the convenience of defining “electronic communication”, as suggested in item3.2.3 above.

Finally, “transaction” has, intrinsically, a legal meaning and a technical (IT) meaning. Theformer associates transaction with a deal, comprising the series of negotiation steps. Thelatter associates it with an technical event or with a record of such event, which may notonly be subject to “communication” but also to filing, keeping, copying, etc. It is importantto indicate what meaning is intended to qualify “electronic transaction” (in theory, thelegal meaning is the intended one, but one should not neglect the fact that the Act is to beenforced also by technical persons, and that the Ministry in charge of regulating the Act isof Information Technology).



EGRIP ELECTRONIC

TRANSACTIONS BILL

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UNITED NATIONS

(…)



TRINIDAD AND TOBAGO 2011 ETA (“TTETA”) &

ETR ( “TTETR”)


“Electronic transaction” means

the single communication or

outcome of multiple communications

involved in the sale or purchase of goods and

services conducted over computer-

mediated networks or information systems, where the goods and

services may be ordered through such networks or systems but the payment and ultimate delivery of

the goods and services may occur without the use of such networks or

systems.

(TTETA) “electronic transaction” includes

the single communication or

outcome of multiple communications


services conducted over computer-

mediated networks or information systems, where the goods and

services may be ordered through such

networks or systems but the payment and ultimate delivery of

the goods and services may occur without the use of such networks

or systems;

“electronic transaction” means the single

communication or outcome of multiple communications


services;

Place of Business

The definition of place of business is used in UNCITRAL’s Convention as instrumental for its provisions.The Bill uses such terminology in Section 19, items 4 and 5. It would be advisable that such terminologyis defined, given its importance in the context of regulation of electronic transactions.

The Australian Electronic Transactions Act has drawn a distinction on place of business in relation togovernment, authority, or non-profit body.

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(…)

EGRIP ELECTRONIC TRANSACTIONS BILL2011/2012


(…)




ETR ( “TTETR”)

SKN(…)

(2) In this Act, “place of business”, in relation to a party, means -

(a) any place where the party maintains a non-transitory establishment to pursue an economic activity other than the temporary

provision of goods or services out of a specific location; or

(b) if the party is a natural person and he does not have a place of business, the

person’s habitual residence.

(3) For the purposes of subsection (2) -

(a) if a party has indicated his place of business, the location indicated by him is

presumed to be his place of business unless another party proves that the party making

the indication does not have a place of business at that location;

“Place of business” means any place where

a party maintains a non-

transitory establishment to

pursue an economic

activity other than the

temporary provision of

goods or services out of a

specific location.

(TTETA) 27. (1) Subject to subsection (2) and unless the originator

and addressee of a data message agree

otherwise, the place of business of either party

is deemed to be (…)

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(…)


UNITED NATIONS

(…)



SKN(…)

(b) if a party has not indicated a place of business and has more than one place of

business, then the place of business is that which has the closest relationship to the relevant contract, having regard to the

circumstances known to or contemplated by the parties at any time before or at the

conclusion of the contract;

(c) a location is not a place of business merely because that location is -

(i) where equipment and technology supporting an information system used by a party in connection with the formation of

a contract are located; or

(ii) where the information system may be accessed by other parties; and

(d) the sole fact that a party makes use of a domain name or an electronic mail

address connected to a specific country does not create a presumption that its

place of business is located in that country.

(4) Where an electronic communication does not relate to any contract, references to a contract in subsection (3) shall refer

to the relevant transaction.

(…) (a) the place of business that has the closest relationship to the

underlying electronic transaction if a party has more than one place of

business; or

(b) if there is no underlying electronic transaction, the principal place of

business of the originator or addressee of the communication.

(2) A location is not a place of business merely because that location

is -

(a) where equipment and technology supporting an information system

used by a party in connection with the formation of a contract are located; or

(b) where the information system may be accessed by other parties.

(3) The sole fact that a party makes use of a domain name or an electronic mail address connected to a specific

country does not create a presumption that its place of business

is located in that country.

Process and Deliver

The definition of some actions or situations by means of defining a particular verb, ascertaining multiplemeanings to it, may originate different interpretation. As seen before, data “processing” has a traditionaltechnical meaning, of data conversion. And “delivery” is usually associated with dispatch (as inUNCITRAL’s Convention, and as in China’s legislation). The existence of definitions for “process” and for“deliver” shall be supported by clear intent regarding their application.



EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012


(…)



TRINIDAD AND TOBAGO 2011 ETA (“TTETA”)

& ETR ( “TTETR”)


“process”, in relation to an electronic record,

means to create, generate, send,

transmit, receive, store, communicate, modify or

display the record;

“deliver” includes give, serve and file;

Intermediaries and Service Providers

Part VII of the Bill regulates the liabilities of intermediaries and of service providers, however, there is nodefinition on what characterizes them. Although there is an acronym, ISP, for Internet service providersin general, the role of each kind of ISP (connection, hosting, or content providers) is quite different, andso shall be their individual liabilities.

This is also important with regard to the phenomenon of merge of different media and activities (digitaltelevision, mobile payments, etc.). The definition shall neither be too generic nor too descriptive, and abalance coupling generic concept and some examples might fit.

Such definition may be also important for avoiding regulatory overlapping, or regulatory gap.


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ION(…)




( “TTETR”)


ACT 2011

“Intermediary” with respect to an electronic

record, means a person who

sends, receives, stores, processes or provides other

services with respect to the

electronic record for another

person, including the provision of content, email,

caching and hosting services.

“intermediary”, with respect to an electronic communication,

means a person including a host who on behalf of another person, sends, receives,

transmits or stores either temporarily or permanently that

electronic communication or provides related services with

respect to that electronic communication, and includes telecommunication service providers, network service providers, Internet service

providers, search engines, online payment sites, online auction sites, online marketplaces and

cyber cafés;

(TTETA)“intermediary” with respect to a data

message means a person who on behalf of another

person, sends, transports, receives or

stores that data message or provides other

services with respect to that data message

including the provision of content, e-mail, caching and hosting services;

“intermediary” with respect to an electronic

record, means a person who, on

behalf of another person, sends, receives,

stores, processes or

provides other services with

respect to that electronic record;

Traffic Data and Content Data

Associated with the different roles of service providers and their different liabilities, the concept of “data”may be split in order to specify the kind of data for which the different service providers are liable.

Such definition shall help build the codes of conduct that are expected to be developed in the regulationof the Act.

Regarding electronic transactions, traffic data may play a separate role regarding determination of thetime of delivery of an electronic communication, as it may differ from the date written in the content dataof the message or from the time indicated by the clock of the computer of the sender.


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COMMUNICATIONSIN





& ETR ( “TTETR”)

SKN ELECTRONIC


N/A N/A N/A N/A N/A

Transaction and Record of a Transaction

Reference made to “a transaction of a non-commercial nature” as included within “transaction” may leadto the conclusion that commercial transactions are excluded (since the other items which follow, “a singlecommunication” and “the outcome of multiple related communications” are irrespective of beingcommercial or non-commercial, and one might argue that they could not be interpreted as filling the gapof a reference to commercial transactions).

This is important as e-commerce is perhaps mostly associated with commercial transactions (again, herethe concept of transaction requires definition, as it tends to be primarily associated with business dealsrather than with technical events).



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TRANSACTIONS BILL

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CONVENTION(…)




( “TTETR”)


ACT 2011

“Record” means recorded information created,

collected, or received in the initiation, conduct or

completion of an activity and that comprises content,

context and structure to provide evidence or proof of that activity or transaction, being inscribed, stored or otherwise maintained on a tangible medium or that is stored in an electronic or any other medium and is accessible in visible and

audible form.

“record” means information that

is inscribed, stored or

otherwise fixed on a tangible

medium or that is stored in an

electronic, paper-based or other medium

and is retrievable in visible form;

(TTETA) “record” means recorded information collected, created or

received in the initiation, conduct or completion of

an activity and that comprises sufficient content, context and structure to provide

evidence or proof of that activity or transaction;

“record” means information that

is

(a) captured, created,

collected, or received in the

initiation, conduct or completion of an activity; and

(…)



EGRIP ELECTRONIC

TRANSACTIONS BILL

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UNITED NATIONS

(…)

SOUTH AFRICA (…)


“Transaction” means an action or set of actions

relating to the conduct of commercial or non-

commercial interactions, between two or more

persons, including but not limited to business entities,

consumers or public bodies, such as the sale,

lease, exchange, licensing, or disposition of personal property, including goods and intangibles, services, or any combination of the

foregoing.

“Transaction record” (or

“record of a transaction” means an electronic record reflecting any stage of an electronic commercial or

noncommercial transaction.

“transaction” means an action or set of actions relating to the

conduct of business,

consumer or commercial

affairs between two or more

persons including the sale, lease,

exchange, licensing or other

disposition of personal property,

including goods and intangible interests in real

property, services or any

combination of any of these acts.

(…) (b) in such a format as to provide evidence or proof of that

activity or transaction being inscribed, stored or otherwise

maintained on a tangible medium;

(c) stored in an electronic or any other medium and is accessible

in visible and audible form;

“transaction” includes

(a) a transaction of a non-commercial nature;

(b) a single communication; or

(c) the outcome of multiple related communications.

Principle of Non-Discrimination

The widely accepted principle of non-discrimination was developed at the early stages of the history ofregulation on electronic transactions. It is usually associated with the principle of technological neutrality,which was rapidly also widely accepted, and lately, has faced some argument in the sense that neutralityimplies accepting market’s leading products and services, not necessarily the ones which should betterfor one’s needs.

The Bill has clearly adopted the principle of non-discrimination, while it regulates the conditions underwhich electronic signatures are admissible. A remark stating that there shall be no discriminationprovided the rules or guidelines of the Act are followed, might be advisable. Australia is an example ofjurisdiction which has adopted such approach.

HIPCAR MODEL LEGISLATIVE TEXT

ONELECTRONIC

TRANSACTIONS


2011/2012

UNITED NATIONS

(…)




ETR ( “TTETR”)

SKN ELECTRONIC TRANSACTIONS ACT

2011

5. Information and transactions

shall not be denied legal

effect, validity or enforcement solely on the

ground that they are represented

in electronic form, provided the requirements

established in this Act are met.

6. […]

[(2) A transaction which has been conducted using electronic means

shall not be denied legal effect, validity

or enforceability solely for the reason

of the type or method of electronic

communication, electronic signature

or electronic authentication selected by the parties.] (…)

1. A communication or a contract shall not be

denied validity or enforceability

on the sole ground that it is in the form of an electronic

communication. (…)

(TTETA) 8. Information or a

record in electronic form or a data

message shall not be denied legal effect,

admissibility or enforceability solely

on the grounds that it is – (…)

Information shall not be denied legal effect

or validity solely on the ground that it is

(a) in the form of an electronic record; or

(b) referred to but not contained in an

electronic record. (…)

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( “TTETR”)


(…) 7. An electronic

communication shall not be denied legal

effect, validity, admissibility or enforceability solely on the

ground that it is -

(a) rendered or made available in electronic form;

or

(b) not contained in the electronic communication purporting to

give rise to such legal effect, but is referred to in that electronic

communication.

(…) 2.Nothing in

this Convention requires a

party to use or accept electronic

communications, but a party’s

agreement to do so may be inferred from the party’s conduct.

(…) (a) rendered or made available in electronic

form; or

(b) not contained in the information, data

message, or record in electronic form purporting to give rise to such legal effect but is referred to in

that information, data message or record.

(…) Admissibility of Electronic Records.

(1) In any legal proceedings, nothing in the rules of

evidence shall apply so as to deny the admissibility of

(a) an electronic record in evidence solely on the

ground that it is an electronic

record or(b) an electronic signature in evidence shall not be denied solely on the grounds that it

is an electronic signature.

Attesting Requirements

Advanced electronic signature (or, “certified” electronic signature) shall not be the onlyoption admitted for purposes of attesting. The principles of technological neutrality and offunctional equivalence recommend that PKI structures are not the only ones admissible.

A regular public notary, of the office of a Court, are examples of possible other capacitieswhich might be admitted regarding attesting correspondence between some electronic andsome non-electronic information or record. USA’s legislation provides an example in suchregard.

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UNITED NATIONS

CONVENTION(...)


SINGAPORE ETA 2010 (SIETA)TRINIDAD AND TOBAGO 2011

ETA (“TTETA”) & ETR (“TTETR”)


2011

9. Where any law requires an

electronic record or signature to be

made, acknowledged, authenticated, notarized or

verified, by any person, that

requirement is met if the following are

attached to or logically associated with the electronic

record;

a. the advanced electronic signature

of that person;

b. in the case of a signature or an electronic record

requiring a signature, a

statement by that person, attesting to

his identity; (…)

13. (1) […]

(2) Where a seal is required by

law to be affixed to a document and such law

does not prescribe the

method or form by which such document may be sealed by

electronic means, that

requirement is met if the document

indicates that it is required to be under seal and it

includes the secure electronic signature of the person by whom it is required to

be sealed. (…)

(TTETA) 18. Where information or a signature,

document or record is required by a statutory

provision or rule of law, or by contract or deed to be

notarized, acknowledged or verified, the requirement

shall be satisfied if, in relation to an electronic

signature, electronic document or electronic record, the electronic

signature of the person authorized to perform those acts, together with all other information required to be

included by other applicable law, is attached to or

logically associated with the electronic signature,

electronic document or electronic record to be

notarized, acknowledged or verified. (…)

Section 12:

(3) Where a seal is required by law to

be affixed to a document and such

law does not prescribe the

method or form by which such

document may be sealed by electronic

means, that requirement is satisfied if the

document indicates that it is required to be under seal and it

includes the advanced electronic

signature of the person by whom it is

required to be sealed.


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(…) c. a statement by that person

certifying the performance of all obligations

imposed by any other law

governing the legal validity of the electronic record; and

d. all other information

required to be included under any other law.

(…) (3) Where information or a signature, document or

record is required by a statutory provision or rule of law, or by contract or deed to be notarised,

acknowledged, verified or made under oath, the requirement shall be

satisfied if, in relation to an electronic signature,

electronic document or electronic record, the

electronic signature of the person authorised to perform those acts,

together with all other information required to be

included by other applicable law, is attached to or

logically associated with the electronic signature,

electronic document or electronic record.

(…) (SAECTA) (2) Where a law requires or permits a person to provide a

certified copy of a document and the document exists in electronic form, that

requirement is met if the person provides a print-out certified to be a true reproduction of the document or

information.

(3) Where a law requires or permits a person to provide a certified copy of a document and the document exists in

paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true

copy thereof and the certification is confirmed by the use of an advanced

electronic signature.

Certain Other Laws Not Affected

There are, possibly, some other laws (for instance, on mobile payments, internet banking, internetsecurities brokerage, electronic political elections, electronic Court proceedings, and so on) which maybring more specific rules. In order to ensure clear integration between the Act as general rule and thespecific laws as special rule, a provision has been used in some international benchmarks to meet suchobjective.




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& ETR (“TTETR”)

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20. (1) Nothing in this Act limits the operation of any other law that expressly authorizes, prohibits or

regulates the use of transaction records

including a method of electronic or advanced electronic signature.

(2) Nothing in this Act limits the operation of any

other law requiring a record of transaction to be posted or displayed in a

specific manner or requiring a record of

transaction to be transmitted by a specified

method.

21. [Error in ElectronicCommunications Section]

[…]

Nothing in this sectionshall affect the application ofany rule of law that maygovern the consequences ofany error other than asprovided for in subsections(1) and (2).

5. (1) This Act shall notapply to any written lawrequiring writing, signaturesor original documents for –(…)

Nothing in this Convention affects the application of

any rule of law that may require the

parties to disclose their identities,

places of business or other

information, or relieves a party from the legal

consequences of making inaccurate, incomplete or false statements in that

regard. (…)

HIPCAR(…)


UNITED NATIONS CONVENTIONON THE USE OF

ELECTRONIC COMMUNICATIONSIN INTERNATIONAL CONTRACTS

SOUTH AFRICA

(…)

SKN(…)

(…) (a) the making, execution orrevocation of a will or testamentaryinstrument;

(b) the conveyance of real orpersonal property or the transfer ofany interest in real or personalproperty;

(c) the creation, performanceor enforcement of an indenture,declaration of trust or power ofattorney;

(d) the production ofdocuments relating to immigration,citizenship or passport matters; or

(e) any other matters that maybe determined by the Minister byOrder.

(2) Notwithstanding subsection(1), the Minister may by Order makethis Act applicable to any of the legalrequirements set out in subsection (1).

(3) An Order made undersubsection (2) shall be subject to[affirmative] resolution of Parliament.

(…) Nothing in this Convention affectsthe application of any rule of law that mayrequire a party that negotiates some or allof the terms of a contract through theexchange of electronic communications tomake available to the other party thoseelectronic communications which containthe contractual terms in a particularmanner, or relieves a party from the legalconsequences of its failure to do so.

Nothing in this article affects theapplication of any rule of law that maygovern the consequences of any errorother than as provided for in paragraph 1.[Error in Electronic CommunicationsArticle]

This Convention shall not prevail overany conflicting rules of any regionaleconomic integration organization asapplicable to parties whose respectiveplaces of business are located in Statesmembers of any such organization, as setout by declaration made in accordance

with article 21.

Consent

The principle of non-repudiation is very stringent for the ones who decide to use or accept the use ofelectronic signatures (at least, of “certified” ones).

In order to strike a balance with such principle, some international benchmarks have included a provisionestablishing that nobody shall be compulsorily required to use or accept electronic documents andsignatures.

On the other hand, there are jurisdictions that have established a gradual social adhesion towardselectronic usage for some applications (income tax annual statement, voting in political elections, andothers), what implies the need of qualifying those as exceptions to the general rule that establishesconsent as a prerogative of every citizen.

A balance between fostering digital inclusion and respecting individual freedom shall be properlyanalysed, on a case by case basis.


TEXT ONELECTRONIC

TRANSACTIONS


2011/2012



COMMUNICATIONSIN





ETR ( “TTETR”)


2011

21. (1) Nothing in this Act requires a person to use,

provide or accept

transaction records without

consent. (…)

6. (1) Nothing inthis Act shall-

(a) require anyperson touse oracceptelectroniccommunications,electronicsignatures orelectroniccontracts;

2. Nothing in this Convention

requires a party to use or accept

electronic communications,

but a party’s agreement to do

so may be inferred from the party’s conduct.

(TTETA) 7. (1) This Act does not require a

person who uses, provides, accepts or

retains – (…)

HIPCAR MODEL LEGISLATIVE TEXT ONELECTRONIC TRANSACTIONS

EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012

UNITED NATIONS(…)

(…)(SAECTA)(SIETA)(“TTETA”( “TTETR”)

SKN(…)

(…) (2) Nothing in this Act shall:

a. require any person to use or accept electronic communications, electronic signatures, or electronic

contracts; or

b. prohibit any person engaging in a transaction through the use of

electronic means from:

i. varying by agreement any provision relating to legal recognition and functional equivalency of electronic

communications, signatures, and contracts; or

ii. establishing reasonable requirements about the manner in which electronic communications, electronic signatures or electronic

forms of documents may be accepted. (…)

(…)

31. […]

(4) Subject tosections 13 and14, nothing inthis Act shall byitself compel anypublic authorityto accept or issueany document orinformation in theform of electronicrecords or toaccept anypayment inelectronic form.

(…) (a) documents;

(b) records; or

(c) information,

to use, provide, accept or retain in these electronic form.

(SAECTA) 4. (2) This Act must not be construed as -

(a) requiring any person to generate,

communicate, produce, process,

send, receive, record, retain, store or display

any information, document or signature

by or in electronic

form;



BILL2011/2012

UNITED NATIONS

(…)

(…)(SAECTA)(SIETA)(“TTETA”( “TTETR”)

SKN(…)

(…) (3) This Act applies to any transaction between parties each of whom has agreed to conduct the transaction electronically.

(4) The fact as to whether or not a party agrees to conduct a transaction

electronically shall be determined:

a. where the party is a public body, by express stipulation of the public body, made

accessible to the public or to those most likely to communicate with it for particular

purposes;

b. in the case of any other party, by the context and surrounding circumstances

including the party’s conduct.

(5) A party that agrees to conduct a particular transaction electronically may

refuse to conduct other transactions electronically.

22. (6) The parties to an electronic commercial transaction may specify that a

particular certification and/or authentication service provider or certain class of

certificates shall be used in connection with electronic records or signatures submitted

to them.

Consumer Protection Rights

St. Kitts and Nevis’ Consumer Affairs Act refers to “any electronic data” in the context of the definition of“document”, and makes a single reference to “electronic communication” in the context of regulation onunsolicited goods.

Some international or foreign benchmarks have regulated consumer protection in on-line transactions,acknowledging consumer’s greater vulnerability in such environment.

Relevant provisions may address the duty to inform suppliers shall comply with by ensuring appropriatecontents in their offerings and advertisement, duty to keep records, duty to maintain channel forcommunication, and others.

HIPCAR MODEL LEGISLATIVE TEXT ON ELECTRONIC TRANSACTIONS

23. (1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronictransaction shall make the following data available to consumers in a clear and comprehensiblemanner:

a. the full name and legal status;

b. its physical address and telephone number;

c. its web site address and e-mail address;

d. the physical address where the supplier will receive legal service of documents;

e. a sufficient description of the main characteristics of the goods or services offered by the supplier to enablea consumer to make an informed decision on the proposed electronic transaction;

f. the full price of the goods or services, including transport costs, taxes and any other fees or costs;

g. the method of payment;

h. any terms of agreement, including any guarantees, that will apply to the transaction and how those termsmay be accessed, stored and reproduced electronically by consumers; (…)


(…) i. the time within which the goods will be dispatched or delivered or within which the services will berendered;

j. the manner and period within which consumers can access and maintain a full record of the transaction;

k. the return, exchange, insurance and refund policy of the supplier;

l. the security procedures and privacy policy of the supplier in respect of payment, payment information andpersonal information;

m. a channel for receipt of notices from the consumer, in the same area of the electronic communicationoriginally used by the supplier to display the offering and/or to promote the transaction.

(2) The supplier shall provide a consumer with the opportunity:

a. to review the entire electronic transaction;

b. to correct any mistakes; and

c. to withdraw from the transaction before finally placing any order.

(3) If the supplier fails to comply with the provisions of subsection (1) or (2), the consumer may cancel thetransaction within fourteen (14) days of receiving the goods or services under the transaction.

(4) If a transaction is cancelled as provided by subsection (3):

a. the consumer shall return the goods of the supplier or, where applicable, cease using the services performed;and

b. the supplier shall refund all payments made by the consumer including the cost of returning the goods.

(5) The supplier shall utilize a payment system that is sufficiently secure with reference to acceptedtechnological standards at the time of the transaction and the type of transaction concerned. (…)


(…)

(6) The supplier is liable for any damage suffered by a consumer due to a failure by the supplier to complywith subsection (5).

(7) The supplier shall ensure the availability of an automated response system to acknowledge receipt ofelectronic communications sent by the consumer.

(8) A consumer electronic transaction shall be deemed concluded upon receipt by the consumer of theelectronic communication from the supplier confirming receipt of consumer’s acceptance of theoffering.


37. (1) A person using electronic communications to sell goods or services to consumers shall provideaccurate, clear and accessible information about themselves, sufficient to allow - the legal name ofthe person, its principal geographic address, and an electronic means of contact or telephonenumber; prompt, easy and effective consumer communication with the seller; and service of legalprocess.

A person using electronic communications to sell goods or services to consumers shall provide accurateand accessible information describing the goods or services offered, sufficient to enable consumers tomake an informed decision about the proposed transaction and to maintain an adequate record of theinformation.

A person using electronic communications to sell goods or services to consumers shall provideinformation about the terms, conditions and costs associated with a transaction, and notably -terms,conditions and methods of payment; and details of and conditions related to withdrawal,termination, return, exchange, cancellation and refund policy information; and details of andconditions related to withdrawal, termination, return, exchange, cancellation and refund policyinformation.



(TTETA) 55. (1) A person using electronic means to sell goods or services to consumers shall provide accurate,clear and accessible information about themselves, sufficient to allow -

(a) the legal name of the person, its principal geographic address, and an electronic means of contact ortelephone number;

(b) prompt, easy and effective consumer communication with the seller; and

(c) service of legal process.

(2) A person using electronic means to sell goods or services to consumers shall provide accurate and accessibleinformation describing the goods or services offered, sufficient to enable consumers to make an informeddecision about the proposed transaction and to maintain an adequate record of the information.

(3) A person using electronic means to sell goods or services to consumers shall, before the conclusion of theelectronic contract based on such transaction, provide the following information to consumers in respectof such electronic contract:

(a) the terms, conditions and methods of payment;

(b) the details of, and conditions and policies related to, privacy, withdrawal, termination, return, exchange,cancellation and refunds;

(c) the arrangements for delivery or performance; and

(d) a copy of the contract for the consumer in a format that can be retained.

56. Before entering into an electronic contract requiring the issuance of a qualified electronic authenticationproduct, an Electronic Authentication Service Provider shall inform the party seeking the electronicauthentication product in writing of the following: (…)



(…)

(a) the terms and conditions concerning the use of the electronic authentication product, including anylimitations on its scope or amounts;

(b) any requirements concerning storage and protection of the signature-creation data by the signatory;

(c) the cost of obtaining and using the electronic authentication product and of using the other services ofthe Electronic Authentication Service Provider;

(d) whether the Electronic Authentication Service Provider is accredited; and procedures for settlement ofcomplaints.

57. A consumer who is not provided with the information required by sections 55 and 56 has the right torescind the contract within thirty calendar days provided that the consumer has not received anymaterial benefit from the transaction.

Cool-off Period

Right of repent is ensured by some international or foreign benchmarks, which establish it in recognitionof the greater vulnerability which affects on-line consumers.

Relevant provisions use to also establish the situations excluded from application of the cool-off period.For instance, the on-line sale of user license and delivery of software is normally excluded, as there maybe no certainty on whether the user has made a copy of the software and kept it instead of returning it.Same shall be extended for digital music and for digital books.



BILL2011/2012

UNITED NATIONS

(…)

(…)(SAECTA)(SIETA)

(“TTETA”) (“TTETR”)

SKN ELECTRONIC


24. (1) A consumer is entitled to cancel without reason and without penalty any

transaction and any related credit agreement for the supply:

a. of goods within seven (7) days after the date of receipt of the goods; or

b. of services within seven (7) days after the date of conclusion of the

agreement.

(2) The only charge that may be levied on the consumer is the direct cost of

returning the goods.

(3) If payment for the goods or services has been effected prior to a consumer

exercising a right referred to in subsection (1), the consumer is entitled to a full refund of such payment, which refund shall be made within 30 days of

the date of cancellation. (…)

(SAECTA) 44.(1) A consumeris entitled tocancel withoutreason andwithout penaltyany transactionand any relatedcredit agreementfor the supply –(…)


EGRIP(…)

UNITED NATIONS

(…)



SKN ELECTRONIC


(…) (4) This section does not apply to an electronic transaction:

a. for financial services, including investment services, insurance and reinsurance operations,

and banking services;

b. conducted as an auction;

c. for services which began, with the consumer’s consent, before the applicable cooling-off period

specified in subsection (1);

d. where the price for the supply of the goods, services or facilities in question is dependent on fluctuations in the financial markets and cannot

be controlled by the supplier;

e. where the goods in question:

i. are made to the consumer’s specifications;

ii. are clearly personalized;

iii. by reason of their nature cannot be returned; or

iv. are likely to deteriorate or expire rapidly; (…)

(…)

(a) of goodswithin sevendays after thedate of thereceipt of thegoods; or

(b) of serviceswithin sevendays after thedate of theconclusion of theagreement.

(…)



EGRIP(…)

UNITED NATIONS

(…)




ACT 2011

(…)

f. where audio or video recordings or consumer

software are unsealed by the consumer;

g. for the sale of newspapers, periodicals, magazines or

books;

h. for the provision of gaming or lottery services; or

i. for the provision of accommodation, transport,

catering or leisure services or facilities, which the supplier undertakes to provide (when the transaction is concluded) on a specific date or within a

specific period.]

(…)

(2) The only charge thatmay be levied on theconsumer is the direct costof returning the goods.

(3) If payment for thegoods or services has beeneffected prior to a consumerexercising a right referredto in subsection (1), theconsumer is entitled to afull refund of such payment,which refund must be madewithin 30 days of the dateof cancellation.

(4) This section must not beconstrued as prejudicing therights of a consumerprovided for in any otherlaw.

Unsolicited Commercial Messages

Some jurisdictions (for instance, the EU) have drawn a line between abusive spamming and acceptable e-mail marketing. The criteria adopted include relevance of the subject matter, disclosure of thecommercial intent, ease of withdrawal from distribution lists, actual address for receivingcorrespondence, etc. Some other jurisdictions have established the possibility of enrolment in a record ofconsumers who have refused to receive electronic propaganda.

Some geographic regions have been targeted by massive mail senders, who may not be natives of suchterritory, creating an unfair reputation for the countries of the region.

Spamming may also be a source of liabilities for Internet service providers, which shall regulate thesubject in the contract with their users and enforce such agreed upon rules, and shall implement filteringsystems which do not unreasonably impair the activities of other users.



EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012



COMMUNICATIONSIN





ETR ( “TTETR”)

SKN ELECTRONIC


25. (1) A person who sends unsolicited

commercial communications to

consumers shall limit the scope of addressees to

the ones who have evidenced potential

interest in the subject matter of the

communication, to be clearly disclosed in the

title of the (…)

38. Any person who sends unsolicited commercial

communications through

electronic media to

consumers based in

Dominica/Grenada/SVG/St Lucia or

knowingly uses an intermediary

or a (…)

(TTETA) 58. (1) Anyperson who sendsunsolicited commercialcommunicationsthrough electronicmedia to consumers inTrinidad and Tobago(…)



EGRIP ELECTRONIC

TRANSACTIONS BILL

2011/2012




CONTRACTS




ETR ( “TTETR”)

SKN ELECTRONIC


(…) communication, and give to a consumer to

whom any communications is sent: a. the opportunity to decline to receive any

further such communications from that person and provide a valid electronic address for such

purpose; and b. upon request by the consumer, the identifying particulars of the source from which

that person obtained consumer’s information or

other personal information.(2) A person who fails to comply with

subsection (1) commits an offence and is liable on

summary conviction to a fine of not less than ……

(dollars) for the first conviction and of not less than ….. (dollars), each,

for any subsequent conviction.

(…) telecommunicati-

ons service provider based in Dominica/Grenada/SVG/St Lucia to send, or who has

a place of business in

Dominica/Grenada/SVG/St Lucia

and sends, unsolicited electronic

correspondence to consumers

shall provide the consumer with a clearly specified

and easily activated option

to opt out of receiving future communications.

(…) to send, or whohas a place ofbusiness in Trinidadand Tobago and sendsunsolicited electroniccorrespondence toconsumers, shallprovide the consumerwith a clearly specifiedand easily activatedoption to opt out ofreceiving futurecommunications.

(2) A person whocontravenessubsection (1)commits an offence.

Consultant NameHIPCAR Project Consultant

THANK YOU

Gilberto Martins de AlmeidaProject Coordinator HIPCARBDT/PRI/ITU-EC Project

[email protected]

Phone: +55 (021) 3084-7550

International Telecommunication

Union

Committed to connecting the world

E-Transactions Comparative Law Analysis - ITU · E-Transactions Comparative Law Analysis Presentation at the ... SKN ELECTRONIC TRANSACTIONS ACT 2011 “certificate” means a data

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