E-Transactions Comparative Law Analysis

Transcription

1 E-Transactions Comparative Law Analysis Presentation at the Government of St Christopher and Nevis and HIPCAR Stakeholder Consultation Workshop on Electronic Transactions Basseterre, 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. 1

2 Certificates In order to meet the principles of technological neutrality and of functional equivalence, it seems important to acknowledge that certificates shall not necessarily be electronic (as in Public Key Infrastructure PKI structures), and may rather be issued in non-electronic form. This may ensure that public bodies and public notaries are also recognized a certification/attestation role with regard to electronic records, not limiting it to e-notaries. Progressive digital inclusion is a maturity process, and it includes a mix of electronic and non-electronic capabilities at intermediate stages. HIPCAR MODEL EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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;

3 Electronic Commerce Definition of electronic commerce as comprising producer to final user relations may not be seen as comprehensive enough, where the Bill goes beyond typical supplier to consumer deals, encompassing liability before third parties. Inclusion of a provision establishing that users exposed to public offerings shall be deemed as equivalent to consumers, or defining electronic commerce as direct or indirect consumer relationships, might be advisable. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 2011 electroniccommerce 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;

4 Electronic Communication The term electronic communication has been largely used, such as in UNCITRAL s Convention Electronic Communications in International Contracts (hereinafter, UNCITRAL s Convention), and in South Africa s Electronic Communications and Transactions Act The merging of information and communications technologies, represented by the acronym ICT, confirm the importance of recognizing that. In order to maximize compatibility with such international benchmark and with such widespread reality, inclusion of a definition on electronic communication might be advisable (also, for the reason that the definition of electronic transaction in the Bill refers to communications ). HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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 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; c. any communication from a tracking device.

5 Data The definition of data is essential for regulation of electronic transactions, as data digitally represent the records of such a transaction. Being so, it is important to avoid confusion with different possible meanings of data, such as information contents (ex.: statistical data ) and information processing (ex.: data processing, as performed 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 is the (electronically) material. Also, the definition of electronic form is not necessary, as data is essentially information in electronic form. Avoiding redundant definitions help avoid confusing interpretation.

6 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 2011 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, machinereadable 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;

7 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 electronic transactions involving government usually differ in many aspects from electronic transactions involving private parties, only. This is true where government has its own system of electronic signatures and of accreditation of its certification. Secondly, because it is import to clarify what parties are comprised within e-government activities (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-economy enterprises, 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. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) 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;

8 HIPCAR MODEL EGRIP UNITED NATIONS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) 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;

9 Electronic Record The definition of electronic record shall go beyond its processing and maintenance. Electronic records are important for electronic transactions also regarding their creation (which may determine the date of an element of the transaction), storage (associated with liability for properly keeping transaction data), and communication (essential for understanding whether some transaction data were delivered, or received), therefore they shall be added to such definition. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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;

10 Electronic Transaction What fundamentally differentiates electronic transactions from non-electronic transactions is, 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 are electronic. Also, the kind of communication involved may transcend regular electronic communication (data messages). For instance, by clicking Accept on a web site, a user may communicate his acceptance of certain transaction. In such case, to what extent a click may be considered as a message, and ultimately, as communication? This may reinforce the convenience of defining electronic communication, as suggested in item above. Finally, transaction has, intrinsically, a legal meaning and a technical (IT) meaning. The former associates transaction with a deal, comprising the series of negotiation steps. The latter associates it with an technical event or with a record of such event, which may not only be subject to communication but also to filing, keeping, copying, etc. It is important to indicate what meaning is intended to qualify electronic transaction (in theory, the legal meaning is the intended one, but one should not neglect the fact that the Act is to be enforced also by technical persons, and that the Ministry in charge of regulating the Act is of Information Technology).

11 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 2011 Electronic transaction means the single communication or outcome of multiple communications involved in the sale or purchase of goods and services conducted over computermediated 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 involved in the sale or purchase of goods and services conducted over computermediated 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 involved in the sale or purchase of goods and services;

12 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 terminology is 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 to government, authority, or non-profit body. HIPCAR MODEL EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & 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 nontransitory 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

13 HIPCAR MODEL EGRIP BILL UNITED NATIONS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) 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 (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 (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. (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.

14 Process and Deliver The definition of some actions or situations by means of defining a particular verb, ascertaining multiple meanings to it, may originate different interpretation. As seen before, data processing has a traditional technical meaning, of data conversion. And delivery is usually associated with dispatch (as in UNCITRAL 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. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 2011 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;

15 Intermediaries and Service Providers Part VII of the Bill regulates the liabilities of intermediaries and of service providers, however, there is no definition on what characterizes them. Although there is an acronym, ISP, for Internet service providers in general, the role of each kind of ISP (connection, hosting, or content providers) is quite different, and so shall be their individual liabilities. This is also important with regard to the phenomenon of merge of different media and activities (digital television, mobile payments, etc.). The definition shall neither be too generic nor too descriptive, and a balance coupling generic concept and some examples might fit. Such definition may be also important for avoiding regulatory overlapping, or regulatory gap. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENT- ION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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, , 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, , 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;

16 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 regulation of the Act. Regarding electronic transactions, traffic data may play a separate role regarding determination of the time of delivery of an electronic communication, as it may differ from the date written in the content data of the message or from the time indicated by the clock of the computer of the sender. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATION S IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 2011 N/A N/A N/A N/A N/A

17 Transaction and Record of a Transaction Reference made to a transaction of a non-commercial nature as included within transaction may lead to the conclusion that commercial transactions are excluded (since the other items which follow, a single communication and the outcome of multiple related communications are irrespective of being commercial or non-commercial, and one might argue that they could not be interpreted as filling the gap of a reference to commercial transactions). This is important as e-commerce is perhaps mostly associated with commercial transactions (again, here the concept of transaction requires definition, as it tends to be primarily associated with business deals rather than with technical events). HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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

18 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS SOUTH AFRICA SKN ACT 2011 Transaction means an action or set of actions relating to the conduct of commercial or noncommercial 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 noncommercial nature; (b) a single communication; or (c) the outcome of multiple related communications.

19 Principle of Non-Discrimination The widely accepted principle of non-discrimination was developed at the early stages of the history of regulation 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 neutrality implies accepting market s leading products and services, not necessarily the ones which should better for one s needs. The Bill has clearly adopted the principle of non-discrimination, while it regulates the conditions under which electronic signatures are admissible. A remark stating that there shall be no discrimination provided the rules or guidelines of the Act are followed, might be advisable. Australia is an example of jurisdiction which has adopted such approach. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 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.

20 HIPCAR MODEL EGRIP BILL UNITED NATIONS CONVENTION (...) SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 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 communicatio ns, 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.

21 Attesting Requirements Advanced electronic signature (or, certified electronic signature) shall not be the only option admitted for purposes of attesting. The principles of technological neutrality and of functional 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 capacities which might be admitted regarding attesting correspondence between some electronic and some non-electronic information or record. USA s legislation provides an example in such regard.

22 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION (...) SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 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.

23 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENT- ION SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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.

24 Certain Other Laws Not Affected There are, possibly, some other laws (for instance, on mobile payments, internet banking, internet securities brokerage, electronic political elections, electronic Court proceedings, and so on) which may bring more specific rules. In order to ensure clear integration between the Act as general rule and the specific laws as special rule, a provision has been used in some international benchmarks to meet such objective. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN 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 Electronic Communications Section] [ ] Nothing in this section shall affect the application of any rule of law that may govern the consequences of any error other than as provided for in subsections (1) and (2). 5. (1) This Act shall not apply to any written law requiring writing, signatures or 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.

25 HIPCAR EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA SKN (a) the making, execution or revocation of a will or testamentary instrument; (b) the conveyance of real or personal property or the transfer of any interest in real or personal property; (c) the creation, performance or enforcement of an indenture, declaration of trust or power of attorney; (d) the production of documents relating to immigration, citizenship or passport matters; or (e) any other matters that may be determined by the Minister by Order. (2) Notwithstanding subsection (1), the Minister may by Order make this Act applicable to any of the legal requirements set out in subsection (1). (3) An Order made under subsection (2) shall be subject to [affirmative] resolution of Parliament. Nothing in this Convention affects the application of any rule of law that may require a party that negotiates some or all of the terms of a contract through the exchange of electronic communications to make available to the other party those electronic communications which contain the contractual terms in a particular manner, or relieves a party from the legal consequences of its failure to do so. Nothing in this article affects the application of any rule of law that may govern the consequences of any error other than as provided for in paragraph 1. [Error in Electronic Communications Article] This Convention shall not prevail over any conflicting rules of any regional economic integration organization as applicable to parties whose respective places of business are located in States members of any such organization, as set out by declaration made in accordance with article 21.

26 Consent The principle of non-repudiation is very stringent for the ones who decide to use or accept the use of electronic signatures (at least, of certified ones). In order to strike a balance with such principle, some international benchmarks have included a provision establishing that nobody shall be compulsorily required to use or accept electronic documents and signatures. On the other hand, there are jurisdictions that have established a gradual social adhesion towards electronic usage for some applications (income tax annual statement, voting in political elections, and others), what implies the need of qualifying those as exceptions to the general rule that establishes consent as a prerogative of every citizen. A balance between fostering digital inclusion and respecting individual freedom shall be properly analysed, on a case by case basis. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT (1) Nothing in this Act requires a person to use, provide or accept transaction records without consent. 6. (1) Nothing in this Act shall - (a) require any person to use or accept electronic communicati ons, electronic signatures or electronic contracts; 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

27 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS (SAECTA) (SIETA) ( TTETA ( TTETR ) SKN (2) Nothing in this Act shall: (a) documents; 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 to sections 13 and 14, nothing in this Act shall by itself compel any public authority to accept or issue any document or information in the form of electronic records or to accept any payment in electronic form. (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;

28 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL 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.

29 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 on unsolicited 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 appropriate contents in their offerings and advertisement, duty to keep records, duty to maintain channel for communication, and others. HIPCAR MODEL LEGISLATIVE TEXT ON 23. (1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronic transaction shall make the following data available to consumers in a clear and comprehensible manner: a. the full name and legal status; b. its physical address and telephone number; c. its web site address and 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 enable a 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 terms may be accessed, stored and reproduced electronically by consumers;

30 HIPCAR MODEL LEGISLATIVE TEXT ON i. the time within which the goods will be dispatched or delivered or within which the services will be rendered; 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 and personal information; m. a channel for receipt of notices from the consumer, in the same area of the electronic communication originally 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 the transaction 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 accepted technological standards at the time of the transaction and the type of transaction concerned.

31 HIPCAR MODEL LEGISLATIVE TEXT ON (6) The supplier is liable for any damage suffered by a consumer due to a failure by the supplier to comply with subsection (5). (7) The supplier shall ensure the availability of an automated response system to acknowledge receipt of electronic communications sent by the consumer. (8) A consumer electronic transaction shall be deemed concluded upon receipt by the consumer of the electronic communication from the supplier confirming receipt of consumer s acceptance of the offering.

32 EGRIP BILL 37. (1) A person using electronic communications to sell goods or services to consumers shall provide accurate, clear and accessible information about themselves, sufficient to allow - the legal name of the person, its principal geographic address, and an electronic means of contact or telephone number; prompt, easy and effective consumer communication with the seller; and service of legal process. A person using electronic communications to sell goods or services to consumers shall provide accurate and accessible information describing the goods or services offered, sufficient to enable consumers to make an informed decision about the proposed transaction and to maintain an adequate record of the information. A person using electronic communications to sell goods or services to consumers shall provide information 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 and conditions related to withdrawal, termination, return, exchange, cancellation and refund policy information.

33 SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) (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 or telephone 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 accessible information describing the goods or services offered, sufficient to enable consumers to make an informed decision 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 the electronic contract based on such transaction, provide the following information to consumers in respect of 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 authentication product, an Electronic Authentication Service Provider shall inform the party seeking the electronic authentication product in writing of the following:

34 SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) (a) the terms and conditions concerning the use of the electronic authentication product, including any limitations 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 of the Electronic Authentication Service Provider; (d) whether the Electronic Authentication Service Provider is accredited; and procedures for settlement of complaints. 57. A consumer who is not provided with the information required by sections 55 and 56 has the right to rescind the contract within thirty calendar days provided that the consumer has not received any material benefit from the transaction.

35 Cool-off Period Right of repent is ensured by some international or foreign benchmarks, which establish it in recognition of 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 may be 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. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS (SAECTA) (SIETA) ( TTETA ) ( TTETR ) SKN TRANSACTION S ACT (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. (SAECTA) 44. (1) A consumer is entitled to cancel without reason and without penalty any transaction and any related credit agreement for the supply (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.

36 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP UNITED NATIONS (SAECTA) (SIETA) ( TTETA ) ( TTETR ) SKN ACT 2011 (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: (a) of goods within seven days after the date of the receipt of the goods; or (b) of services within seven days after the date of the conclusion of the agreement. 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;

37 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP UNITED NATIONS (SAECTA) (SIETA) ( TTETA ) ( TTETR ) SKN ACT 2011 f. where audio or video recordings or consumer software are unsealed by the consumer; (2) The only charge that may be levied on the consumer is the direct cost of returning the goods. 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.] (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 must be made within 30 days of the date of cancellation. (4) This section must not be construed as prejudicing the rights of a consumer provided for in any other law.

38 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 the commercial intent, ease of withdrawal from distribution lists, actual address for receiving correspondence, etc. Some other jurisdictions have established the possibility of enrolment in a record of consumers who have refused to receive electronic propaganda. Some geographic regions have been targeted by massive mail senders, who may not be natives of such territory, 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 the subject in the contract with their users and enforce such agreed upon rules, and shall implement filtering systems which do not unreasonably impair the activities of other users. HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT (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/Grena da/svg/st Lucia or knowingly uses an intermediary or a (TTETA) 58. (1) Any person who sends unsolicited commercial communications through electronic media to consumers in Trinidad and Tobago

39 HIPCAR MODEL LEGISLATIVE TEXT ON EGRIP BILL UNITED NATIONS CONVENTION ON THE USE OF COMMUNICATIONS IN INTERNATIONAL CONTRACTS SOUTH AFRICA ECTA 2002 (SAECTA) SINGAPORE ETA 2010 (SIETA) TRINIDAD AND TOBAGO 2011 ETA ( TTETA ) & ETR ( TTETR ) SKN ACT 2011 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. telecommunications service provider based in Dominica/Grenad a/svg/st Lucia to send, or who has a place of business in Dominica/Grenad a/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 who has a place of business in Trinidad and Tobago 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. (2) A person who contravenes subsection (1) commits an offence.

40 THANK YOU Consultant Name HIPCAR Project Consultant Gilberto Martins de Almeida Project Coordinator HIPCAR BDT/PRI/ITU-EC Project Phone: +55 (021)