1.2.4. COUNTRY-BY-COUNTRY
ELECTRONIC CONTRACTING LAW PERSPECTIVES
As
long as for development of electronic contracting three principal areas must be
legally governed such as: 1) guaranteeing legal efficacy of electronic records,
electronic authentication and the binding nature of electronic communications;
2) formation process of electronic contracts; 3) fraud prevention – the
governments of many countries adopted acts intended to cover some or all
abovementioned “key” areas. Taking the existence and scope of legal regulation
as a criterion, three groups of countries can be distinguished. The first one
is represented by those where all “key” areas have been regulated. The second
group consists of countries where only certain aspects of electronic
contracting were legally framed. And at least, all countries where only drafts
of electronic contracting legislation can be found belong to the third group.
Historically, the leading
positions in the first group have been occupied by the USA and Canada. That is
why the legislation of these countries will be considered in details.
In the USA there are two
levels of legal regulation: federal and state. It is appropriate to analyze
them separately. The first “federal” step in regulating of electronic
contracting was the adoption of the Uniform Electronic Transactions Act
(hereinafter the UETA)[1]
in 1999. It was [d]esigned to remove obstacles to e-commerce while avoiding
revision for existing substantive law provisions to the greatest extend
possible[2].
The provisions of the UETA are based on UNICTRAL Model Law on Electronic
Commerce; Uniform Commercial Code; Restatement 2d, Contracts; and
Canadian Uniform Electronic Commerce Act. The UETA covers such areas of
electronic contracting as use of electronic records
and electronic signatures (section 5), legal
recognition of electronic records, electronic signatures, and electronic
contracts (section 7); attribution and effect of electronic record and
electronic signature (section 9); contract formation issues (sections 11-15).
The UETA
has to be enacted into state law before it will be effective. Nowadays it is adopted in twenty eight states[3].
Next important act
contributed to development of legal regulation of electronic contracting in the
USA is the Uniform Computer Information Transaction Act (hereinafter the UCITA)
promulgated by the National Conference of Commissioners of Uniform State Laws
in 1999. [T]he UCITA is a proposed uniform state law governing only transactions
involving computer information (such as the licensing of computer software or
databases)[4]. The UCITA contains a number of important provisions related to
electronic contracting such as formation of a contract, performance of a
contract, warranties, remedies, etc. But [u]ntil UCC article 2 governing sales
of goods is revised, the legal status of electronic contracts for sales of
goods will remain uncertain[5].
For further facilitation of
use of electronic records and signatures in interstate or foreign commerce in
2000 the Congress adopted the Electronic Signatures in Global and National
Commerce Act[6] (hereinafter
E-Sign). The primary concerns of this Act are to assure that:
[N]otwithstanding any
statute, regulation, or other rule of law…, with respect to any transaction[7]
in or affecting interstate or foreign commerce —
1. a signature,
contract, or other record relating to such transaction may not be denied legal
effect, validity, or enforceability solely because it is in electronic
form;
2. a contract relating
to such transaction may not be denied legal effect, validity, or enforceability
solely because an electronic signature or electronic record was used in its
formation;
3. a contract or other record relating to a transaction…may not be denied
legal effect, validity, or enforceability solely because its formation,
creation, or delivery involved the action of one or more electronic agents so
long as the action of any such electronic agent is legally attributable to the
person to be bound.
The remarkable feature of
E-Sign (not typical for US law) is that it is constructed in the best European
Union traditions of consumer protection. Namely, all issues related to
electronic contracting are considered in the context of consumer disclosure [§
101 (c)]. E-Sign stipulates that all information in the form of electronic
record satisfies the requirement that such information be in writing if: 1) the consumer has affirmatively consented to such use and has not
withdrawn such consent, and 2) prior to consent the consumer is provided with a
clear and conspicuous information about the procedure of withdrawal of such
consent, receiving paper copies of electronic records, etc. E-Sign also
requires full disclosure to the consumer all information concerning the
electronic contract he entered in.
The E-Sign does not override
any state laws on electronic transactions if the state has adopted the Uniform
Electronic Transactions Act, which also establishes the legal validity of
electronic signatures and contracts [§ 102 (a)]. [I]n other words, if the
state's law is more or less the same as the new federal law, it will remain in
force - but if not, it will be trumped by the federal law. This ensures that
electronic contracts and electronic signatures will be valid in all states,
regardless of where the parties live or where the contract is executed[8].
Considering state level of
legal regulation of electronic contracting it can be noted that in resent years
(since 1995, when the State of Utah adopted the Digital Signature Act[9])
individual states have enacted a number of statutes indented to clarify the
legal status of contracts formed electronically. Some states, such as Utah,
have adopted comprehensive legislation that is technology specific. Other
states, such as California, has attempted to avoid promoting a specific
technology by enacting legislation that recognize several different
technologies as legally effective. Still others, such as Illinois, has enacted
legislation that tries to remove obvious obstacles to electronic contracting in
general while also providing more specific legal consequences for the use of
electronic contracting technologies deemed to be more reliable. New Jersey
legislators, for example, have not enacted any new statutes specifically aimed at
promoting e-commerce, but instead have painstakingly reviewed all their
existing statutory signature and writing requirements and are considering
revisions to existing statutes only when the need of revision was demonstrated.
The main measures for the removing
barriers to electronic contracting in Canada were taken by the Uniform Law
Conference, which in August, 1999 approved a Uniform Electronic Evidence Act,
and in September, 1999 adopted the Uniform Electronic Commerce Act[10]
(hereinafter the UECA). The UECA was designed to implement the principles of
UNCITRAL Model Law of Electronic Commerce in Canada. It has three parts. The
first part sets out the basic functional equivalents rules, and spells out that
they apply when parties involved in the transaction have agreed, expressly or
by implication to use electronic documents. Part two of the UECA sets out
special rules for particular kinds of communications including the formation
and operations of contracts, the effect of using automated transactions, and
deemed time of sending and the place of sending and receiving computer
messages. Part three makes special provisions for the carriage of goods.
Like US UETA, the UECA must
be enacted into law of provinces and territories, before it be effective. Only
five of them such as Manitoba, Newfoundland & Labrador, Nova Scotia, Prince
Edward Island, and Yukon have recently passed legislations modeled on the UECA[11].
Another provinces and territories[12]
enacted Electronic Transactions Acts (hereinafter ETA), which are very similar
(in structure and essence) to the UECA. ETAs address such aspects of electronic
contracting as recognition of legal effect of contracts in electronic form,
conditions for satisfaction of requirement for records to be in writing,
electronic signature, formation and operation of electronic contracts.
To complete the analyses of
the first group of countries it should be noted that all-caught acts,
significantly similar to the US UETA and Canadian UECA were also adopted in Spain
(Royal Decree Law 19 – Law 1906/1998)[13];
Singapore [Electronic Transactions Act (1998)][14];
Columbia [Electronic Commerce Law (1999)][15];
Philippines [Electronic Commerce Act
(2000)][16]; Antilles
[State Ordinance 168 (2000)][17], Republic of Slovenia [Electronic Commerce and Electronic Signature Act
(2000)][18];
South Korea [The basic law of Electronic Commerce (2000)][19];
Tunisia Electronic Commerce and Exchange Bill (2000)][20];
the UK [Electronic Communications Act[21]
(2000)][22].
As mentioned above the
second group consists of countries, where only some of electronic contracting
issues are covered by the legislation. To the opinion of governments of many
states the most important problem, solution of which will significantly
contribute to further development of e-commerce and electronic contracting is
guaranteeing legal efficacy of electronic records, electronic authentication
and the binding nature of electronic communications. That is why the acts
intended to regulate using of electronic signature were adopted in Germany [Digital Signature Ordinance (1997)][23]; Italy
[Italian Digital Signature Legislation (1997)][24];
Austria
[Austrian Federal Electronic Signature Law (2000)][25];
Check Republic [Digital Signature Bill (2000)][26];
Estonia [Digital Signatures Act (2000)][27];
Finland [The Act on Electronic Service in the Administration (2000)][28];
France [Electronic Signature Bill (2000)][29];
Lithuania [Law on Electronic Signature (2000)][30];
Argentine (Digital Signature Act (2001)[31];
Hungary [Act on Digital Signature (2001)][32];
Russia [Federal Law # 1-FZ “On Electronic Digital Signature” (2002)][33].
The main leitmotif of these
statutes is assuring that electronic
signature is granted the same legal force that a hand-written signature in
written documents has and is admissible as evidence in court. All these acts
provide that the electronic signature must be certificated by a
certification-service provider (CSP), who is responsible for issuing of private
keys and for maintenance of depository of public keys. In some countries (like
Malaysia) the activity of CSP must be licensed by the government, in others
(like Slovakia) - “certification service provider does not require a
special permit for performing his activity”. Generally, CSP is obliged with reasonable
professional care: 1) to use trustworthy systems and products, which are
protected against modification and ensure the technical and cryptographic
security of the process supported by them, and 2) to take security measures
against forgery of certificates, and, in cases where it generates signature
creation data, guarantee confidentiality of the data during the whole process
of generating these data.
In countries, which belong
to the third group, the process of elaboration of electronic contracting law
just started. Like in the countries of the second group the main attention is
paid to the electronic signature. Thus, drafts of Electronic Signature Acts are
under consideration of legislative bodies of Malaysia [Digital Signature Bill
(1997)][34];
Denmark (Act on Digital Signatures (1998)[35];
Mexico (proposed modification to Commercial Code (1999)[36];
Brazil[37];
Ecuador[38];
Peru[39];
Belgium[40];
Israel (Electronic Signature Bill)[41];
Luxemburg[42];
Netherlands [Electronic Signature Act (2000)[43];
Poland[44];
Sweden[45].
So, completing the reviewing
of country-by-country law in the sphere of electronic contracting the following
conclusions must be made:
Copyright 2002 ©
Sakharuk Dmytro
[1] Available at: http://www.law.upenn.edu/bll/ulc/fnact99/1990s/ueta99.htm
[2] Jane K. Winn, Benjamin Wright, Law
of Electronic Commerce, 4th Edition, Aspen Law & Business
2001: 5.61.
[3] Arkansas, California,
Delaware, District of Columbia, Florida, Hawaii, Idaho, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, South Dakota, Tennessee, Utah, Wyoming.
[4] American Bar Association Working Group Report on the Uniform Computer
Information Transactions Act January 31, 2002, available at: http://www.abanet.org/leadership/ucita.pdf
[5] Jane K. Winn, Benjamin Wright, Law
of Electronic Commerce, 4th Edition, Aspen Law & Business
2001: 5.61
[6] Available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_bills&docid=f:s761enr.txt.pdf
[7] The term “transaction” means
an action or set of actions relating to the conduct of business, consumer, or
commercial affairs between two or more persons [§106 (19) of E-Sign].
[8] Peri
H. Pakroo, New Law Makes E-Signatures
Valid, Nolo Legal Encyclopedia, available at: http://www.nolo.com/lawcenter/ency/article.cfm/objectID/029C847E-2EFC-4913-B6DDC5849ABE81F9/catID/806B7BA0-4CDF-4221-9230A3135E2DF07A
[9] Available at: http://www.le.state.ut.us/~code/TITLE46/46_03.htm
[10] Available at: http://www.law.ualberta.ca/alri/ulc/acts/eueca-a.html
[11] Barry B. Sookman, Computer,
Internet and Electronic Commerce Law, Carswell Thomson Publishing, 2001:
10-9.
[12] Alberta, British Columbia, New
Brunswick.
[13] Available at: http://www.boe.es/boe/dias/2002-02-11/
[14] Available at: http://www.cca.gov.sg/eta/framecontent.html
[15] Available at: http://www.qmw.ac.uk/~tl6345/colombia_en_final.htm
[16] Overview available at: http://www.bmck.com/ecommerce/Philippine%20E-Com%20Law.doc
[17] Available at: http://www.bmck.com/ecommerce/State%20Ordinance%20Agreements%20via%20Electronic%20Channels-Eng.pdf
[18] Available at: http://www.sigov.si/ep/ecaes.doc
[19] Available at: http://www.mocie.go.kr/work/index.html
[20] Overview available at: http://www.bmck.com/ecommerce/Tunisian%20National%20Certification%20Agency.pdf
[21] Although this act does not directly
address contractual issues, it gives recognition to electronic communications
in place of paper and gives authority to electronic signatures.
[22] Available at: http://www.hmso.gov.uk/acts/acts2000/20000007.htm
[23] Available at: http://www.iid.de/iukdg/sigve.html
[24] Available at: http://www.aipa.it
[25] Overview available at: http://www.bmck.com/ecommerce/austrianesig.pdf
[27] Available at: http://www.riik.ee/riso/digiallkiri/digsignact.rtf
[28] Available at: http://www.om.fi/2838.htm
[29] Overview available at: http://www.bmck.com/ecommerce/france-t.htm
[30] Summary available at: http://www.bmck.com/ecommerce/lithuania-t.doc
[32] Overview available at: http://www.bmck.com/ecommerce/hungary-t.htm
[33] Overview available at: http://www.bmck.com/ecommerce/Russia-E-Signature-Alert.doc
[34] Available at: http://www.geocities.com/Tokyo/9239/digisign.html
[35] Available at: http://www.fsk.dk/fsk/div/hearing/draft.html
[36] Overview available at: http://www.bmck.com/ecommerce/mexico-t.htm
[40] Doing E-commerce in Europe,
Baker & Mckenzie, 2001: 40, available at: http://www.bmck.com/Doing%20E-Commerce%20in%20Europe/Doing%20E-Commerce%20In%20Europe.pdf
[41] Available at: http://www.justice.gov.il/
[42] Available at: http://www.etat.lu/ECO/
[43] Available at: http://www.minaz.nl/data/976884536.pdf
[44] Available at: http://venus.ci.uw.edu.pl/~dancop/ustawa.pdf
[46] While the USA adopted three acts: UETA,
UCITA, and E-Sign, intended to address certain aspects of online business
activity.