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Electronic Commerce Act 2000 Fifteen Hot Tips and More Toronto Computer Lawyers’ Group December 2000 John D. Gregory Ministry of the Attorney General.

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Presentation on theme: "Electronic Commerce Act 2000 Fifteen Hot Tips and More Toronto Computer Lawyers’ Group December 2000 John D. Gregory Ministry of the Attorney General."— Presentation transcript:

1 Electronic Commerce Act 2000 Fifteen Hot Tips and More Toronto Computer Lawyers’ Group December 2000 John D. Gregory Ministry of the Attorney General

2 December 13, 2000Electronic Commerce Act Outline: ECA 2000 n Status of the Ontario Act n Principles and Application of the 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 govt to regulate methods

9 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 take effect in two weeks – Ontario legislation is possible

15 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 or in course of transaction – except where the law provides otherwise

19 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 When in doubt: get acknowledgement

21 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act 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 December 13, 2000Electronic Commerce Act How ECA compares … to C-6 n 1. Privacy in C-6 not UECA n 2. Electronic documents: – C-6 is opt-in – standards are to be in regulation – “secure electronic signatures” n 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)

24 December 13, 2000Electronic Commerce Act How ECA compares … to ROC n Saskatchewan Bill 38 (in force Nov 1/00) – basically the same, except govt filing rules n Manitoba Bill 31 (in force Oct 23/00 +-) – MB Bill is “opt in” for functional equivalents – MB has some consumer protection too n Nova Scotia Bill 61 (in force Dec 1/00) – basically the same as UECA n British Columbia Bill 32 (1st reading) – BC Bill has no special “government” rules

25 December 13, 2000Electronic Commerce Act How ECA compares … to ROC n Yukon Bill 29 (3rd reading) – basically the same as UECA n 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 n New Brunswick, Alberta to come soon

26 December 13, 2000Electronic Commerce Act 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

27 December 13, 2000Electronic Commerce Act 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

28 December 13, 2000Electronic Commerce Act 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 who certifies lawyers? – Smart cards n signatures vs access controls n privacy rules

29 December 13, 2000Electronic Commerce Act What’s next n Licensing - no sign of UCITA in Canada n Jurisdiction – few cases, more or less like US cases – regulatory jurisdiction - Alberta cases – enforcement of judgments - Hague work n Dispute resolution - signs of interest n Taxation - the big issue n Connectivity - serious initiatives

30 December 13, 2000Electronic Commerce Act Sources n Electronic Commerce Act 2000 – b088ra_e.htm n Uniform Electronic Commerce Act – n United Nations Model Laws – ec.htm (Model Law on Electronic Commerce) – 34/483e.pdf (Model Law on Electronic Signatures) n Uniform Electronic Transactions Act –

31 December 13, 2000Electronic Commerce Act Sources n Canadian legislation n Saskatchewan: The Electronic Documents and Information Act, n Manitoba: The Electronic Commerce and Information Act, 1s00.pdf n Nova Scotia: the Electronic Commerce Act 1.htm n British Columbia: the Electronic Transactions Act

32 December 13, 2000Electronic Commerce Act Sources n Yukon: the Electronic Commerce Act (Bill 29) n Quebec: An Act to establish a legal framework for information technology loi/publics/00-a161.htm. n Canada: Personal Information Protection and Electronic Documents Act vernment/C-6/C-6_4/C-6_cover-E.html

33 December 13, 2000Electronic Commerce Act Sources n Consumer Protection n Principles for Consumer Protection – Government, consumer, business group, Nov 1999: – n Ontario consultation 2000 – n Manitoba draft regulations on consumers – n Public Interest Advocacy Centre on UECA –

34 December 13, 2000Electronic Commerce Act Sources n Privacy – Ontario consultation n U.S. Legislation and Policy – Uniform Electronic Transactions Act – Uniform Computer Information Transactions Act – State, federal and international law:


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