BizTech Forum 2005 The Electronic Transactions Bill A Paradigm Shift? M. Georgia Gibson-Henlin Nunes, Scholefield, DeLeon & Co.

Transcription

1 BizTech Forum 2005 The Electronic Transactions Bill A Paradigm Shift? October M. Georgia Gibson-Henlin Nunes, Scholefield, DeLeon & Co. Nunes, Scholefield, DeLeon & Co. 1

2 ELECTRONIC TRANSACTIONS BILL Functional Equivalency Traditional Bill Agreement between the parties Freedom to Contract. Legal Security Only applies to Parties who Agree Integrity & Authenticity Good Faith Good Faith Consumer Protection Nunes, Scholefield, DeLeon & Co. 2

3 ELECTRONIC TRANSACTIONS BILL - OBJECTS Facilitate commerce by reliable electronic documents. Promote the development of the legal and business infrastructure necessary to implement secure electronic commerce. Eliminate barriers to electronic commerce resulting from uncertainties over writing and signature requirements Nunes, Scholefield, DeLeon & Co. 3

4 ELECTRONIC TRANSACTIONS BILL - OBJECTS Promote public confidence in the integrity and reliability of electronic documents and transactions, in particular through the use of encrypted signatures to ensure the authenticity and integrity of electronic documents; Facilitate electronic filing of documents to government agencies and statutory corporations. Nunes, Scholefield, DeLeon & Co. 4

5 ELECTRONIC TRANSACTIONS BILL EXCLUSIONS Manuscript Signature still required for: Wills Agreements for Sale of Land Powers of Attorneys or Trust Instruments Procedures governed by Rules of Court (e. g. evidence) or the Civil Procedure Rules. Nunes, Scholefield, DeLeon & Co. 5

6 RECENT PAST How Authentication. Document Oral Purchase Signature Mark (X) Manuscript Thumbprint Identification Government Issued Face to Face Nunes, Scholefield, DeLeon & Co. 6

7 ELECTRONIC TRANSACTIONS BILL Authentication I Has it Changed? It equates typewritten with handwritten. It expands while not restricting the classes or types of signatures: Shrink Wrap Click Wrap Browse Wrap PIN Biometric Whatever the parties agree! Nunes, Scholefield, DeLeon & Co. 7

8 ELECTRONIC TRANSACTIONS BILL Authentication II Has it Changed? Signature Requirement for Attestation of documents met if the following are attached or logically associated with the Document: An encrypted signature; In the case of a signature or document requiring a signature a statement by that person, attesting to the identity of the signatory; A statement certifying performance of obligations Nunes, Scholefield, DeLeon & Co. 8

9 ELECTRONIC TRANSACTIONS BILL Preservation of Documents Has it Changed? Requirements to Produce Documents in Original Form. Requirements for keeping information. Evidential Weight Nunes, Scholefield, DeLeon & Co. 9

10 ELECTRONIC TRANSACTIONS BILL: Where & When Formed & Which Court? Physical World Electronic World When either one or both parties have agreed Oral or where sale of land. The situs of the agreement. Payment Choice of Jurisdiction Click/Browse Wrap/PIN The Communication between the parties. Payment WHERE the offer was accepted or WHERE it is Agreed that it is formed. Choice of Jurisdiction Nunes, Scholefield, DeLeon & Co. 10

11 BUT WHAT IF IT WASN T ME? The rules are the same: The person relying on the signature must prove the signature is not a forgery!!! Technical means Proof of Presence Knowledge of lack of authority on the part of the recipient Negligence on part of purported originator Nunes, Scholefield, DeLeon & Co. 11

12 COMMERCE What is it Really? Commerce is Reeeally a nice word for Trade! Always the exchange of Goods or Services for Currency. Always in a Market Always grounded in the law of Contract - however primitive. Always in the Physical World (Smiley!!!) Nunes, Scholefield, DeLeon & Co. 12

13 TRANSACTIONS More than trade Business Private Public Nunes, Scholefield, DeLeon & Co. 13

14 COMMERCE Yeeears Ago!!! Currency Honour Barter Goods for Goods. Goods for Services Services for Services Nunes, Scholefield, DeLeon & Co. 14

15 COMMERCE - Today Currency Cash Presentment Wired Cheques Plastic Debit or Credit Cards Nunes, Scholefield, DeLeon & Co. 15

16 COMMERCE - Today X Commerce Where x is reeeally different media for commerce: Commerce Retail Distributive Trade Cross-Border Trade Tele-(Commerce) Tele-marketing E-Commerce M-Commerce Nunes, Scholefield, DeLeon & Co. 16

17 COMMMERCE/TRANSACTIONS Does it make a difference? Commerce: Transactions Primarily Trading in commodities/goods Tangible or intangible Business/Services Banking Consular Applications Paper v. Virtual Service Delivery Government Tax Online Motor Vehicle Titles on Line Applications -Certificates RGD. Paper v. Virtual Nunes, Scholefield, DeLeon & Co. 17

18 Online Commerce But has it changed traditional principles? (Smiley!!!) New Media No longer limited to the physical World However: Offer Acceptance Consideration Price Intent Result Bargain/Exchange Who? - Parties What? Subject matter When & Where? Formed & which Court Authentication - Signature Nunes, Scholefield, DeLeon & Co. 18

19 ELECTRONIC TRANSACTIONS BILL: Parties Nunes, Scholefield, DeLeon & Co. 19

20 ELECTRONIC TRANSACTIONS BILL: What? It is on-line You saw! You Liked! You bought!!! Alas: It s No Good!!! It s a Hoax!!! Nunes, Scholefield, DeLeon & Co. 20

21 RISK MANAGEMENT: LEGISLATION OR CONTRACT? Who Should Protect Online Transactions? Who Protects your transactions Now Why should the Online medium be different? Burglar Bars, Alarms, Security Guards must be replicated by Technical Security Measures. Contractual terms still required - under the usual rules e. g. Notice to Purchaser or contracting party. In the end nothing has really changed!!!! Nunes, Scholefield, DeLeon & Co. 21

22 THE END QUESTION & ANSWER Papers will be available on (within a week) Nunes, Scholefield, DeLeon & Co. 22