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Electronic Commerce Act 2000Fifteen Hot Tips and More
Toronto Computer Lawyers’ GroupDecember 2000
John D. GregoryMinistry of the Attorney General
December 13, 2000 Electronic Commerce Act 2000 2
Outline: ECA 2000
Status of the Ontario Act Principles and Application of the 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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.
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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)
December 13, 2000 Electronic Commerce Act 2000 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.
December 13, 2000 Electronic Commerce Act 2000 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 govt to regulate methods
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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 take effect in two weeks– Ontario legislation is possible
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 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 e-mail or in course of transaction– except where the law provides otherwise
December 13, 2000 Electronic Commerce Act 2000 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”?
December 13, 2000 Electronic Commerce Act 2000 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 When in doubt: get acknowledgement
December 13, 2000 Electronic Commerce Act 2000 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?
December 13, 2000 Electronic Commerce Act 2000 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
December 13, 2000 Electronic Commerce Act 2000 23
How ECA compares … to C-6
1. Privacy in C-6 not UECA 2. Electronic documents:
– C-6 is opt-in– standards are to be in regulation– “secure electronic signatures”
3. Electronic evidence:– C-6 enacts Uniform Electronic Evidence Act, and
optional presumptions– Ontario enacted UEEA in Red Tape Reduction
Act 1999 Sch B section 7 (in force June 30/00)
December 13, 2000 Electronic Commerce Act 2000 24
How ECA compares … to ROC
Saskatchewan Bill 38 (in force Nov 1/00)– basically the same, except govt filing rules
Manitoba Bill 31 (in force Oct 23/00 +-)– MB Bill is “opt in” for functional equivalents– MB has some consumer protection too
Nova Scotia Bill 61 (in force Dec 1/00)– basically the same as UECA
British Columbia Bill 32 (1st reading)– BC Bill has no special “government” rules
December 13, 2000 Electronic Commerce Act 2000 25
How ECA compares … to ROC
Yukon Bill 29 (3rd reading)– basically the same as UECA
Quebec Bill 161 (2nd reading)– different approach, more detailed rules– more on integrity of documents and signatures– rules on certification processes for signatures– rules on establishment of tech. standards– public consultation already on draft bill
New Brunswick, Alberta to come soon
December 13, 2000 Electronic Commerce Act 2000 26
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
December 13, 2000 Electronic Commerce Act 2000 27
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
December 13, 2000 Electronic Commerce Act 2000 28
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 who certifies lawyers?
– Smart cards signatures vs access controls privacy rules
December 13, 2000 Electronic Commerce Act 2000 29
What’s next
Licensing - no sign of UCITA in Canada Jurisdiction
– few cases, more or less like US cases– regulatory jurisdiction - Alberta cases– enforcement of judgments - Hague work
Dispute resolution - signs of interest Taxation - the big issue Connectivity - serious initiatives
December 13, 2000 Electronic Commerce Act 2000 30
Sources
Electronic Commerce Act 2000– http://www.ontla.on.ca/Documents/StatusofLegOUT/
b088ra_e.htm Uniform Electronic Commerce Act
– www.ulcc.ca/alri/ulc/current/euecafa.htm United Nations Model Laws
– http://www.unictral.org/english/texts/electcom/ml-ec.htm (Model Law on Electronic Commerce)
– http://www.uncitral.org/english/sessions/unc/unc-34/483e.pdf (Model Law on Electronic Signatures)
Uniform Electronic Transactions Act– http://www.law.upenn.edu/bll/ulc/ulc.htm#ueccta
December 13, 2000 Electronic Commerce Act 2000 31
Sources
Canadian legislation Saskatchewan: The Electronic Documents and Information
Act, http://www.legassembly.sk.ca/bills/HTML/bill038.htm Manitoba: The Electronic Commerce and Information Act,
http://www.gov.mb.ca/chc/statpub/free/pdf/b31-1s00.pdf Nova Scotia: the Electronic Commerce Act
http://www.gov.ns.ca/legi/legc/bills/58th_1st/3rd_read/b061.htm
British Columbia: the Electronic Transactions Act http://www.legis.gov.bc.ca/2000/1st_read/gov32-1.htm
December 13, 2000 Electronic Commerce Act 2000 32
Sources
Yukon: the Electronic Commerce Act (Bill 29) http://www.gov.yk.ca/leg-assembly/progress.html
Quebec: An Act to establish a legal framework for information technology http://www.assnat.qc.ca/eng/publications/Projets-loi/publics/00-a161.htm.
Canada: Personal Information Protection and Electronic Documents Act http://www.parl.gc.ca/36/2/parlbus/chambus/house/bills/government/C-6/C-6_4/C-6_cover-E.html
December 13, 2000 Electronic Commerce Act 2000 33
Sources
Consumer Protection Principles for Consumer Protection
– Government, consumer, business group, Nov 1999:– http://strategis.ic.gc.ca/SSG/ca01180e.html
Ontario consultation 2000– http://www.ccr.gov.on.ca/pdf/EnConsProt.pdf
Manitoba draft regulations on consumers– http://www.gov.mb.ca/cca/cpa/in_age.html
Public Interest Advocacy Centre on UECA– http://www.piac.ca/uecalet.htm
December 13, 2000 Electronic Commerce Act 2000 34
Sources
Privacy– Ontario consultation 2000
http://www.ccr.gov.on.ca/pdf/PrivacyPaper.pdf U.S. Legislation and Policy
– Uniform Electronic Transactions Act http://www.law.upenn.edu/bll/ulc/ulc.htm#ueccta http://www.uetaonline.com
– Uniform Computer Information Transactions Act http://www.law.upenn.edu/bll/ulc/ulc.htm#ucita http://www.ucitaonline.com
– State, federal and international law: http://www.bmck.com/ecommerce http://www.mbc.com/