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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.

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Presentation on theme: "Electronic Commerce Legislation: What You Can Do Now Osgoode LL.M. class Toronto, March 2, 2005 John D. Gregory Ministry of the Attorney General."— Presentation transcript:

1 Electronic Commerce Legislation: What You Can Do Now Osgoode LL.M. class Toronto, March 2, 2005 John D. Gregory Ministry of the Attorney General

2 Electronic Commerce Legislation2 Electronic Commerce Legislation Outline n Focus on Ontario law n Principles and Application of the Ontario Act n What you can do with the ECA n What you can’t do with the ECA n What you must be careful of with the ECA n How this compares with elsewhere n What’s next? n Sources

3 Electronic Commerce Legislation3 Status of the ECA 2000 n Electronic Commerce Act 2000 – Statutes of Ontario 2000, c. 17 – In force October 16, 2000 n Comprehensive minimalist legislation n Interprets most Ontario laws n Sources: – United Nations Model Law on E-Commerce – Uniform Electronic Commerce Act

4 Electronic Commerce Legislation4 Principles of E-Commerce Act n “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. n “technology neutral” - the law does not favour one technology over another. n “removes barriers” - the Act does not regulate e-communications or harmonize existing laws that already govern them.

5 Electronic Commerce Legislation5 Principles of E-Commerce Act n General rule: no discrimination n General protection: only on consent (express or implied)(real and relevant) – media bias or reality check? n “Functional equivalents”: what an electronic document has to be or do in order to work as a document on paper n NOTE: e-documents do not have to be more reliable than paper documents

6 Electronic Commerce Legislation6 Application of E-Commerce Act n ALL legal relationships under Ontario law BUT: – named types of documents n wills, most powers of attorney n most land transfers n most negotiable instruments n election documents - municipal and provincial – electronic communications already provided for by law (allowed, regulated, prohibited) – biometrics, unless consent or statutory authority n power to add to list by regulation (safety valve)

7 Electronic Commerce Legislation7 What you can do with the ECA n 1. Use an electronic document when something has to be “in writing” n 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”? n No standard of integrity beyond this.

8 Electronic Commerce Legislation8 What you can do with the ECA n 2. Sign with an e-signature a document that the law requires to be signed. n “Electronic signature” - includes intention to sign, link with signed document n VERY open-ended definition n No rule for attribution n No standard of integrity beyond definition n Authority for government to regulate methods

9 Electronic Commerce Legislation9 What you can do with the ECA n 3. Use an electronic document as an “original” n Can have an electronic original or an electronic version of another original n Key is (variable) assurance of integrity of the information n Is format part of the information? n Note PPSA exception for chattel paper

10 Electronic Commerce Legislation10 What you can do with the ECA n 4. Retain electronic records to satisfy a retention requirement n E-documents retained may be originals or electronic reproductions n Key is integrity again n Evidence of transmission to be kept n Retain for same period, accessible to same people as paper records

11 Electronic Commerce Legislation11 What you can do with the ECA n 5. Enter into contracts electronically n Clicking, touching, speaking to computer are all acceptable methods n Can automate the offer and the acceptance n The usual legal requirements remain: – Intention to contract – Consideration n Nothing about when a message is effective

12 Electronic Commerce Legislation12 What you can’t do with the ECA n 1. Compel someone to deal with you by electronic communications n Consent rule mitigates discomfort levels n Consent rule mitigates security risk n Consent may be inferred from conduct if reasonable and relevant n Consent rule applies to public bodies too

13 Electronic Commerce Legislation13 What you can’t do with the ECA n 2. Create a unique electronic document n Different from attribution or integrity n Technologically not yet clear – distinct from immobilizing document n So no negotiability, documents of title n Carriage of goods is exception – target for technology rather than affirmation of existing capacity

14 Electronic Commerce Legislation14 What you can’t do with the ECA n 3. Ignore consumer protection and privacy law n 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 n Privacy overlies the whole topic – Federal laws have national effect – Ontario has health sector privacy legislation – QC, AB, BC have private sector privacy legislation

15 Electronic Commerce Legislation15 What you can’t do with the ECA n 4. Skip reading the law applicable to your facts n The ECA yields to other law that prohibits, regulates or allows electronic documents n Display and delivery requirements still apply – but if you can opt out, you can use e-docs – you may be able to comply electronically n Rules of court, land transfers, etc etc

16 Electronic Commerce Legislation16 What you can’t do with the ECA n 5. Seal a document n Unclear how to do an electronic seal – cf. Court seal for electronic writs – E-seal is much like e-signature n One size does not fit all: – function: consideration or solemnity – function: integrity of document – function: assurance of source of document n ECA authorizes regulations on seals

17 Electronic Commerce Legislation17 What you have to be careful of n 1. Security of e-documents and e- signatures n A legal standard is not necessarily a prudent standard n Party autonomy means risk as well as choice n Consent principle provides some protection n Security for confidentiality is also important

18 Electronic Commerce Legislation18 What you have to be careful of n 2. Providing information electronically n Information has to be accessible for subsequent use and capable of being retained n You can’t inhibit printing or downloading n 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

19 Electronic Commerce Legislation19 What you have to be careful of n 3. Encouraging mistakes n An individual dealing with an electronic agent (any web site) can void transaction for mistake – if meets conditions, notably does not keep benefit n Could be hard if transaction is in a series n Provide means to avoid or cure mistakes – “Are you sure”?

20 Electronic Commerce Legislation20 What you have to be careful of n 4. Has your message been received? n 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 n Evidence of accessibility may be scarce n Spam filters create issues with the rule n When in doubt: get acknowledgement

21 Electronic Commerce Legislation21 What you have to be careful of n 5. Public bodies’ IT standards n Public bodies can require that incoming documents meet IT standards n No form requirement for these standards – may be as simple as word processing type – most public bodies will be flexible, OTC rule n Standards must be communicated n Harmonization of IT standards - likely?

22 Electronic Commerce Legislation22 What you have to be careful of n 6. Existing form requirements in contracts n The ECA applies to legal requirements for writing, signature, and others n The ECA does not interpret a contractual rule e.g. that something has to be in writing n Parties to such agreements will have to cure them by agreement

23 Electronic Commerce Legislation23 How ECA compares to PIPEDA n 1. Privacy in PIPEDA not UECA n 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)

24 Electronic Commerce Legislation24 How ECA compares to PIPEDA n 3. Electronic evidence: – PIPEDA enacts Uniform Electronic Evidence Act, and optional presumptions (s. 31.4) n Presumption of attribution n Presumption of integrity n 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)

25 Electronic Commerce Legislation25 How ECA compares to other Canadian laws n SK Electronic Information and Documents Act – basically the same, except govt filing rules (2002 amdt) n 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 n NS Electronic Commerce Act – basically the same as UECA n BC Electronic Transactions Act – no special “government” rules

26 Electronic Commerce Legislation26 How ECA compares to other Canadian laws n YK Electronic Commerce Act – Basically the same as UECA n NB Electronic Transactions Act – Most variation of any provincial implementation – No exclusions, nothing on contracts or government n PEI Electronic Commerce Act – Basically the same as UECA – Unusual definition of e-sig but same substance n NFL Electronic Commerce Act – Basically the same as UECA n AB The Electronic Transactions Act – Basically UECA with some ON-like changes

27 Electronic Commerce Legislation27 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

28 Electronic Commerce Legislation28 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

29 Electronic Commerce Legislation29 How ECA compares to other Canadian laws n Quebec spells things out - UECA lets some things go without saying – Question of judgment – views will differ n Quebec Act as users’ guide for UECA … n Quebec adds – rules on certification processes for signatures – rules on liability of intermediaries – rules on establishment of technical standards

30 Electronic Commerce Legislation30 How ECA compares to USA n Uniform Electronic Transactions Act (UETA) n UETA and ECA draw on UN Model Law n UETA focuses on “record” n Consent, functional equivalence +- the same n UETA allows for “transferable records” n UETA passed in half the states in a year

31 Electronic Commerce Legislation31 How ECA compares to USA n Federal legislation - E-SIGN – Electronic Signatures in Global & National Commerce Act in force October 1/00 n Imposes UETA standards on state laws – no higher standards allowed for private use – public agencies may require more security n Consumer protection carve-outs – must demonstrate capacity to receive e-docs – especially post-default notices

32 Electronic Commerce Legislation32 What’s next n Electronic signatures – UN Model Law on Electronic Signatures n reliability standards n duties of parties: signature, CA, relying party n recognition of foreign certificates and signatures – GO-PKI and others n identity certificates and role certificates n role for legislation? – Smart cards n signatures vs access controls n privacy rules

33 Electronic Commerce Legislation33 International initiatives n 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 n See also: UNCITRAL Model Laws n EU Directives: E-Signature, E-commerce

34 Electronic Commerce Legislation34 Relation to Other Issues n 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

35 Electronic Commerce Legislation35 Relation to Other Issues n Consumer Protection – ECA has some protections – Educational guidelines published Nov 99 – FPT Internet Sales Harmonization Template: n disclosure of information – seller’s identity, location, applicable law – description of product, price, terms, remedies n receipts needed n cancellation rights for non-disclosure, -delivery – ON:Consumer Protection Act 2002 (in force July 1/05) n Some anti-Rogers v Kanitz provisions – AB, MB, NS: reversing credit card transactions

36 Electronic Commerce Legislation36 What’s next n International convention from UNCITRAL n Jurisdiction – few cases, more or less like US cases (+ defamation) – regulatory jurisdiction - Alberta and federal cases – enforcement of judgments – untested in Canada n Dispute resolution - signs of interest n Taxation - the big issue (detection not principle) n PKI – federal, provincial, and private work n Accessibility – to people with disabilities n Licensing - no sign of UCITA in Canada n Connectivity - serious (non-legal) initiatives

37 Electronic Commerce Legislation37 Questions? n John D. Gregory, “Canadian Electronic Commerce Legislation”, (2002), 17 Banking & Finance LR 277 - 339 n – (notably under Commercial Law Strategy) n n – by subscription - request to John Gregory

38 Electronic Commerce Legislation38 Sources n Electronic Commerce Act 2000 (Ontario) – http://www.e- http://www.e- n Uniform Electronic Commerce Act – – Implementation and related laws across Canada:

39 Electronic Commerce Legislation39 Sources n Consumer Protection n Federal-provincial-terrritorial work – Internet Sales Harmonization Template, 2001 – bc.nsf/en/ca01642e.html bc.nsf/en/ca01642e.html – Code of Practice for Consumer Protection in e-com – cmc.nsf/en/fe00064e.html cmc.nsf/en/fe00064e.html n Ontario Consumer Protection Act 2002 – 02c30a_e.htm n Regulations – Ontario Gazette Feb 5/05 – in force July 1/05

40 Electronic Commerce Legislation40 Sources n Privacy – PIPEDA (Canada) – – Personal Information Protection Act (BC) – – Personal Information Protection Act (AB) – 6.5/20041104/whole.html 6.5/20041104/whole.html – Personal Health Information Protection Act (ON) – http://www.e- http://www.e-

41 Electronic Commerce Legislation41 Sources n United Nations Model Laws – ec.htm (Model Law on Electronic Commerce) ec.htm – elecsig-e.pdf (Model Law on Electronic Signatures) elecsig-e.pdf n UNCITRAL draft Convention on e- communications – ndex.htm ndex.htm – 38/38-index-e.htm 38/38-index-e.htm

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