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Electronic Commerce Legislation: What You Can Do Now. Osgoode LL.M. class Toronto, March 2, 2005 John D. Gregory Ministry of the Attorney General. Electronic Commerce Legislation Outline. Focus on Ontario law Principles and Application of the Ontario Act What you can do with the ECA - PowerPoint PPT Presentation
Citation preview
Electronic Commerce Legislation:
What You Can Do Now
Osgoode LL.M. classToronto, March 2, 2005
John D. GregoryMinistry of the Attorney General
Electronic Commerce Legislation 2
Electronic Commerce LegislationOutline
Focus on Ontario law Principles and Application of the Ontario Act What you can do with the ECA What you can’t do with the ECA What you must be careful of with the ECA How this compares with elsewhere What’s next? Sources
Electronic Commerce Legislation 3
Status of the ECA 2000
Electronic Commerce Act 2000– Statutes of Ontario 2000, c. 17– In force October 16, 2000
Comprehensive minimalist legislation Interprets most Ontario laws Sources:
– United Nations Model Law on E-Commerce– Uniform Electronic Commerce Act
Electronic Commerce Legislation 4
Principles of E-Commerce Act
“media neutral” - the law of electronic communications is the same as the law of any other medium; the Act merely accommodates the differences of media.
“technology neutral” - the law does not favour one technology over another.
“removes barriers” - the Act does not regulate e-communications or harmonize existing laws that already govern them.
Electronic Commerce Legislation 5
Principles of E-Commerce Act General rule: no discrimination General protection: only on consent (express
or implied)(real and relevant)– media bias or reality check?
“Functional equivalents”: what an electronic document has to be or do in order to work as a document on paper
NOTE: e-documents do not have to be more reliable than paper documents
Electronic Commerce Legislation 6
Application of E-Commerce Act ALL legal relationships under Ontario law
BUT: – named types of documents
wills, most powers of attorney most land transfers most negotiable instruments election documents - municipal and provincial
– electronic communications already provided for by law (allowed, regulated, prohibited)
– biometrics, unless consent or statutory authority power to add to list by regulation (safety valve)
Electronic Commerce Legislation 7
What you can do with the ECA
1. Use an electronic document when something has to be “in writing”
The e-document has to be “accessible so as to be usable for subsequent reference”– Accessible to whom? Objective or subjective?– Usable for the same purpose as the writing– How long is “subsequent”?
No standard of integrity beyond this.
Electronic Commerce Legislation 8
What you can do with the ECA
2. Sign with an e-signature a document that the law requires to be signed.
“Electronic signature” - includes intention to sign, link with signed document
VERY open-ended definition No rule for attribution No standard of integrity beyond definition Authority for government to regulate methods
Electronic Commerce Legislation 9
What you can do with the ECA
3. Use an electronic document as an “original”
Can have an electronic original or an electronic version of another original
Key is (variable) assurance of integrity of the information
Is format part of the information? Note PPSA exception for chattel paper
Electronic Commerce Legislation 10
What you can do with the ECA
4. Retain electronic records to satisfy a retention requirement
E-documents retained may be originals or electronic reproductions
Key is integrity again Evidence of transmission to be kept Retain for same period, accessible to same
people as paper records
Electronic Commerce Legislation 11
What you can do with the ECA
5. Enter into contracts electronically Clicking, touching, speaking to computer are all
acceptable methods Can automate the offer and the acceptance The usual legal requirements remain:
– Intention to contract– Consideration
Nothing about when a message is effective
Electronic Commerce Legislation 12
What you can’t do with the ECA
1. Compel someone to deal with you by electronic communications
Consent rule mitigates discomfort levels Consent rule mitigates security risk Consent may be inferred from conduct if
reasonable and relevant Consent rule applies to public bodies too
Electronic Commerce Legislation 13
What you can’t do with the ECA
2. Create a unique electronic document Different from attribution or integrity Technologically not yet clear
– distinct from immobilizing document So no negotiability, documents of title Carriage of goods is exception
– target for technology rather than affirmation of existing capacity
Electronic Commerce Legislation 14
What you can’t do with the ECA
3. Ignore consumer protection and privacy law Consumer protection is under separate study
– published principles aim mainly at disclosure– Alberta and Manitoba have drafted regulations– status of post-transaction notices is hot in US
Privacy overlies the whole topic– Federal laws have national effect– Ontario has health sector privacy legislation– QC, AB, BC have private sector privacy legislation
Electronic Commerce Legislation 15
What you can’t do with the ECA
4. Skip reading the law applicable to your facts
The ECA yields to other law that prohibits, regulates or allows electronic documents
Display and delivery requirements still apply– but if you can opt out, you can use e-docs– you may be able to comply electronically
Rules of court, land transfers, etc etc
Electronic Commerce Legislation 16
What you can’t do with the ECA
5. Seal a document Unclear how to do an electronic seal
– cf. Court seal for electronic writs– E-seal is much like e-signature
One size does not fit all:– function: consideration or solemnity– function: integrity of document– function: assurance of source of document
ECA authorizes regulations on seals
Electronic Commerce Legislation 17
What you have to be careful of
1. Security of e-documents and e-signatures A legal standard is not necessarily a prudent
standard Party autonomy means risk as well as choice Consent principle provides some protection Security for confidentiality is also important
Electronic Commerce Legislation 18
What you have to be careful of
2. Providing information electronically Information has to be accessible for subsequent
use and capable of being retained You can’t inhibit printing or downloading You can’t provide information by posting on a
web site– except by webmail or in course of transaction– except where the law provides otherwise
Electronic Commerce Legislation 19
What you have to be careful of
3. Encouraging mistakes An individual dealing with an electronic
agent (any web site) can void transaction for mistake– if meets conditions, notably does not keep benefit
Could be hard if transaction is in a series Provide means to avoid or cure mistakes
– “Are you sure”?
Electronic Commerce Legislation 20
What you have to be careful of
4. Has your message been received? The ECA has a double rule on receipt:
– designated system: presumed received when accessible and processible
– undesignated system: presumed received when addressee becomes aware of accessibility
Evidence of accessibility may be scarce Spam filters create issues with the rule When in doubt: get acknowledgement
Electronic Commerce Legislation 21
What you have to be careful of
5. Public bodies’ IT standards Public bodies can require that incoming
documents meet IT standards No form requirement for these standards
– may be as simple as word processing type– most public bodies will be flexible, OTC rule
Standards must be communicated Harmonization of IT standards - likely?
Electronic Commerce Legislation 22
What you have to be careful of
6. Existing form requirements in contracts The ECA applies to legal requirements for
writing, signature, and others The ECA does not interpret a contractual rule
e.g. that something has to be in writing Parties to such agreements will have to cure
them by agreement
Electronic Commerce Legislation 23
How ECA compares to PIPEDA 1. Privacy in PIPEDA not UECA 2. Electronic documents: in force, but …
– C-6 is opt-in (only one law designated so far)– standards are to be in regulation (one made)– “secure electronic signatures” (reg. in 2005)
Secure electronic signatures are required for: Certificates of ministers or public officers as evidence Statements as to truth of information Seals (if stated to be used as a seal) Documents to be equivalent to originals Statements under oath (deponent and commissioner) Signatures of witnesses to documents (and the signers)
Electronic Commerce Legislation 24
How ECA compares to PIPEDA
3. Electronic evidence:– PIPEDA enacts Uniform Electronic Evidence Act, and
optional presumptions (s. 31.4) Presumption of attribution Presumption of integrity Both depend on regulations not yet made
– Ontario enacted UEEA in Red Tape Reduction Act 1999 Sch B section 7 (in force June 30/00)
NOTE: record retention rule in PIPEDA (section 37) is limited to documents that start their life in electronic form (not so in UECA s.13, ON s.12)
Electronic Commerce Legislation 25
How ECA compares to other Canadian laws
SK Electronic Information and Documents Act– basically the same, except govt filing rules (2002 amdt)
MB Electronic Commerce and Information Act– MB Bill is “opt in” for functional equivalents– Opt-in part is still not in force– MB has some consumer protection too
NS Electronic Commerce Act– basically the same as UECA
BC Electronic Transactions Act– no special “government” rules
Electronic Commerce Legislation 26
How ECA compares to other Canadian laws
YK Electronic Commerce Act– Basically the same as UECA
NB Electronic Transactions Act– Most variation of any provincial implementation– No exclusions, nothing on contracts or government
PEI Electronic Commerce Act– Basically the same as UECA– Unusual definition of e-sig but same substance
NFL Electronic Commerce Act– Basically the same as UECA
AB The Electronic Transactions Act– Basically UECA with some ON-like changes
Electronic Commerce Legislation 27
How ECA compares to other Canadian laws
QC Act to establish legal framework for information technology
_______________________- Generic title
- “technology-based”
- Stability of document
- Life cycle of document
Uniform Electronic Commerce Act
______________________- “e-commerce” but
frequently changed- “electronic”- Accessible so as to be
usable for subsequent reference
- Retention rules
Electronic Commerce Legislation 28
How ECA compares to other Canadian laws
Quebec statute______________________- Link with creator – sig- Applies to all documents
(except consumer…)- Consent (s. 29)- Presumption of reliability
and stability (ss. 7, 15)- Protect the incautious by
express standards
Uniform E-Commerce Act_______________________- Definition of signature- Applies to all documents
(except list – N.B.: all)- Consent (s. 6)- Flexible standard, no
express presumption- Allow flexibility – protect
some by exclusions
Electronic Commerce Legislation 29
How ECA compares to other Canadian laws
Quebec spells things out - UECA lets some things go without saying
– Question of judgment – views will differ
Quebec Act as users’ guide for UECA …
Quebec adds– rules on certification processes for signatures– rules on liability of intermediaries– rules on establishment of technical standards
Electronic Commerce Legislation 30
How ECA compares to USA
Uniform Electronic Transactions Act (UETA) UETA and ECA draw on UN Model Law UETA focuses on “record” Consent, functional equivalence +- the same UETA allows for “transferable records” UETA passed in half the states in a year
Electronic Commerce Legislation 31
How ECA compares to USA
Federal legislation - E-SIGN– Electronic Signatures in Global & National Commerce
Act in force October 1/00 Imposes UETA standards on state laws
– no higher standards allowed for private use– public agencies may require more security
Consumer protection carve-outs– must demonstrate capacity to receive e-docs– especially post-default notices
Electronic Commerce Legislation 32
What’s next
Electronic signatures– UN Model Law on Electronic Signatures
reliability standards duties of parties: signature, CA, relying party recognition of foreign certificates and signatures
– GO-PKI and others identity certificates and role certificates role for legislation?
– Smart cards signatures vs access controls privacy rules
Electronic Commerce Legislation 33
International initiatives
UNCITRAL draft convention on the use of electronic communications in international contracts– Rules on form requirements– Rules on substantive requirements– Rules on relations with other treaties
See also: UNCITRAL Model Laws EU Directives: E-Signature, E-commerce
Electronic Commerce Legislation 34
Relation to Other Issues
Privacy– IPC said ECA is acceptable– FIPPA and MFIPPA remain in force– Personal Health Information Protection Act has been
ruled compatible with PIPEDA (January 2005) so organizations covered by it will comply with the provincial law not PIPEDA for data within Ontario, account to Information and Privacy Commissioner.
– No current plans for a general Ontario law– BC and Alberta, and Quebec, have general laws ruled
consistent in principle with PIPEDA
Electronic Commerce Legislation 35
Relation to Other Issues Consumer Protection
– ECA has some protections– Educational guidelines published Nov 99– FPT Internet Sales Harmonization Template:
disclosure of information– seller’s identity, location, applicable law– description of product, price, terms, remedies
receipts needed cancellation rights for non-disclosure, -delivery
– ON:Consumer Protection Act 2002 (in force July 1/05) Some anti-Rogers v Kanitz provisions
– AB, MB, NS: reversing credit card transactions
Electronic Commerce Legislation 36
What’s next International convention from UNCITRAL Jurisdiction
– few cases, more or less like US cases (+ defamation)– regulatory jurisdiction - Alberta and federal cases– enforcement of judgments – untested in Canada
Dispute resolution - signs of interest Taxation - the big issue (detection not principle) PKI – federal, provincial, and private work Accessibility – to people with disabilities Licensing - no sign of UCITA in Canada Connectivity - serious (non-legal) initiatives
Electronic Commerce Legislation 37
Questions?
John D. Gregory, “Canadian Electronic Commerce Legislation”, (2002), 17 Banking & Finance LR 277 - 339
http://www.ulcc.ca– (notably under Commercial Law Strategy)
john.d.gregory@jus.gov.on.ca ulc_ecomm-l@ic.gc.ca
– by subscription - request to John Gregory
Electronic Commerce Legislation 38
Sources
Electronic Commerce Act 2000 (Ontario)– http://www.e-laws.gov.on.ca/DBLaws
/Statutes/English/00e17_e.htm
Uniform Electronic Commerce Act– http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1u1
– Implementation and related laws across Canada: http://www.ulcc.ca/en/cls/index.cfm?sec=4&sub=4b
Electronic Commerce Legislation 39
Sources Consumer Protection Federal-provincial-terrritorial work
– Internet Sales Harmonization Template, 2001– http://strategis.ic.gc.ca/epic/internet/inoca-bc.nsf/en/
ca01642e.html – Code of Practice for Consumer Protection in e-com– http://cmcweb.ca/epic/internet/incmc-cmc.nsf/en/fe00064e.html
Ontario Consumer Protection Act 2002– http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/
02c30a_e.htm Regulations – Ontario Gazette Feb 5/05 – in force July 1/05
Electronic Commerce Legislation 40
Sources Privacy
– PIPEDA (Canada)– http://laws.justice.gc.ca/en/P-8.6/index.html – Personal Information Protection Act (BC)– http://www.legis.gov.bc.ca/37th4th/1st_read/gov38-1.htm– Personal Information Protection Act (AB)– http://www.canlii.org/ab/laws/sta/p-6.5/20041104/
whole.html – Personal Health Information Protection Act (ON)– http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/
04p03_e.htm
Electronic Commerce Legislation 41
Sources
United Nations Model Laws– http://www.unictral.org/english/texts/electcom/ml-
ec.htm (Model Law on Electronic Commerce)– http://www.unictral.org/english/texts/electcom/ml-
elecsig-e.pdf (Model Law on Electronic Signatures) UNCITRAL draft Convention on e-
communications– http://www.uncitral.org/english/workinggroups/wg_ec/
index.htm– http://www.uncitral.org/english/sessions/unc/unc-38/38-
index-e.htm
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