Presentation on E Transactions Bill.ppt

8/10/2019 Presentation on E Transactions Bill.ppt

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THEELECTRONIC TRANSACTIONS BILL,

2013

STAKEHOLDERS CONSULTATIVE WORKSHOP

19 DECEMBER 2013


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What is e-commerce/transaction Law?

E-Transaction Law in concerned with the businesstransacted through:-

a) Electronic mail systems (e-mail).

b) Transactions conducted through a website (websitetrading).c) Electronic data interchange (EDI).d) Electronic payments (m-money, m- wallets, m-banking,

etc)


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Challenges posed by ICT on e-Transactions

a) Contract formation processb) Lack of face to face business consultancy (confidence

issues)

c) Consumer protection (non delivery or delivery of wronggoods)d) Reliance on e-payment mechanismse) e-taxation

f) Jurisdiction issues (ubiquitous nature of the internet)


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Advantages of Paper based Contracts overE-Contracts

a) to provide tangible evidence of the intention of parties tobind themselves;

b) to help parties to be aware of the consequences ofentering into a contract;

c) to provide a document legible to all; to provide apermanent record of a transaction;

d) to allow a document to be reproduced and copies to beheld by all parties;


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Advantages..continued e) to allow authentication by way of a signature;f) to provide a document in a form acceptable to public

authorities and courts;

g) to finalise and to record the intent of the author;h) to allow easy storage in tangible form;i) to facilitate control and subsequent auditing for

accounting, tax or regulatory purposes;

j) and to create legal rights where writing is a requiredelement of legal validity.


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The Concept of e-Signatures in e-

Transactions In relation to signatures the focus is on the ability of the

electronic signature to identify the person and to indicatetheir approval of the contents of the message.

Methods of e-signatures:a. Digital signatures;b. A scanned manuscript signature;

c. The typing of a name; andd. Clicking on a website button


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e- Signatures.cont. a) Digital signatures This uses a public key encryption system involving a

certification authority a digital signature can give a highlevel of assurance that an electronic communication hasbeen sent by the person possessing the private key; thatit came from a particular individual; and that it was notchanged en route.


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e- Signatures.cont.

b) A scanned manuscript signature A manuscript signature may be scanned into a computer,

stored in electronic form and incorporated into an e-mailor other document.

c) The typing of a name

The name of the signatory (or their initials) may be typedinto an e-mail or other document. Alternatively a systemmay be set up to add the name (or initials) automatically;for example, before sending an e-mail.


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e- Signatures.cont. d) Clicking on a website/System button Website trading often involves the purchaser entering

onto the website details of the goods which they wish topurchase, confirming payment and personal details, andclicking on a button to confirm the order.


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Legal Regimes for E-Transactions

1. United Nations Commission on International TradeLaw (UNCITRAL) Model Law on ElectronicCommerce.

2. UNCITRAL Model Law on Electronic Signatures,2001.

3. African Convention on Cyber Security, 2012 4. EA Framework on Cyber Security, Phase II

5. SADC Data e-Commerce Model Law, 2011


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THE ELECTRONIC TRANSACTIONS BILL,2013

Objectives:

a) to eliminate legal barriers to the effective use ofelectronic communications in transactions;

b) to promote the harmonization of legal rules onelectronic transactions across national boundaries;c) to facilitate the appropriate use of electronic

transactions;

d) to promote business and community confidence inelectronic transactions; ande) to enable business and the community to use electronic

communications in their transactions with government


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RATIONALE FOR THE e-TRANSACTIONS BILL, 2013

Rationale:

1. The impact of ICT on cross cuttingsector

2. The National ICT Policycompliance

3. Modernizing the NationalPayment Systems (their Reg.Framework)

4. Absence of codified single parentlegislation for e commerce/trade

5. Best practice in the internationalarena

Opportunities

1. Boosting users confidence (public& investors)

2. Compliance with internationaltreaties, conventions and bestpractices (EAC Cyber Framework,SADC Model Laws, AU CyberLaw Framework etc..)

3. Adoption and usage of emerging

electronic payment systemsproducts4. Deployment of ICT related

payment infrastructures


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FEATURES OF THE BILL

PART I PLEMINARY PROVISIONS

Initial legal provisions in any piece of legislation

Long title citing the reasons for enactment of the legislation

Short title Application over United Republic of Tanzania (a Union Matter)

Commencement Gazette by the Minister

Interpretation

Scope of Application the coverage in terms of subject matter electronic transactions,

electronic communication,

electronic records,


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FEATURES OF THE BILLcont..

PART II LEGAL RECOGNITION OF DATA MASSAGE

Legal Recognition of the Data Massages legal effect, validity

and enforceability

Legal Recognition of the Parties to Data Massage

Requirements for Written Communication conditions under the

legal validity of e communication/data

Electronic Signatures powers to develop Regulations on this

Recognition of foreign electronic communications immateriality

of location of origin in electronic communication/data


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FEATURES OF THE BILL.cont

Exceptions under which there must be a writtencommunication: contract for the alienation of immovable property;

a contract for the long-term lease of immovable property in excess of 20

years; the execution, retention and presentation of a will or codicil;

the execution of a bill of exchange;

Rationale for the exception: There are other requirements under the existing laws which due to their

risky nature communication for their part must be written


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FEATURES OF THE BILLcont

PART III E GOVERNMENT SERVICES Acceptance of electronic filling, requirements zeroing in the

Government e services in relation to e transactions/e commerce(e.g. payments, license, criteria, control process and procedures

etc) Prohibit insisting on document to be only in e format

Definition of public bodies in relation to the e Governmentservices usage

The consent of public body to accept information in e format Services and delivery in e format and the requirements

Payment and receipt in the context of e Government services

Electronic Government Gazette


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FEATURES OF THE BILL (cont.)

PART IV ADMISSIBILITY AND EVIDENTIAL WEIGHT OFDATA MASSAGE

Admissibility and evidentiary weight of e communications

Attribution of electronic communications

Attribution of secure electronic signatures

Prescribed forms

Requirement to produce an original document

Electronic record keeping

Notarization, acknowledgement and certification


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PART V LEGAL RECOGNITION OF E CONTRACTS Legal recognition of electronic contracts

Expressions of will

Exception to Part V

Time of dispatch and receipt of electronic communications

Acknowledgement of receipt

Contract of sale by online auction

Place of dispatch and receipt of electronic communications anddetermination of place of business for taxation

Time (and point) of contract formation

Contracts with interactive message systems


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PART VI - CONSUMER PROTECTION

The duties of suppliers to online consumers

Time within which an order should be executed

Cancellation right (the cooling off period)

Applicability of foreign law

Rights not to be excluded

Unsolicited goods, services or communications

Matters Related to Contracts for Carriage of Goods


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Suppliers' Duty to give information

a) its full contact details , including its place of business,e-mail addresses and telefax number(s);

b) a sufficient description of the main characteristicsand conditions of the goods or services offered;

c) the full price of the goods or services, includingtransport costs, taxes and any other fees or costs;

d) the payment system that is sufficient and secure.e)

any terms of agreement and the manner and periodwithin which consumers can access and maintain a fullrecord of the transaction.


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Cancellation right (the cooling off period)

A consumer has:-a) a right to cancel without reason and without penalty any

transaction within seven days after the date of thereceipt of the goods; or

b) Cancel the transaction within seven days after the dateof the conclusion of the agreement.

c) refund must be made within 30 days of the date ofcancellation.


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Exceptions to the Cooling Off Perioda) for financial services ,( including investment services,

insurance and reinsurance operations, banking servicesand operations relating to dealings in securities;

b) by way of an auction ;c) for the supply of foodstuffs , beverages or other

goods intended for everyday consumption supplied tothe home, residence or workplace of the consumer;

d) for services which began with the consumer'sconsent before the end of the seven-day periodreferred to in this section;


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Unsolicited marketing Marketing by means of electronic communication shall not

be allowed unless the initiator provides the addresseewith:

a) the originators identity and contact details including itsplace of business, e-mail, addresses and telefaxnumber(s);

b) a valid and operational opt-out facility from receivingsimilar

c) the identifying particulars of the source from which theoriginator obtained the addressee's personalinformation.


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Unsolicited marketing.continued The opt-in requirement will be deemed to have been

met where:a) the addressee contacts and other personal information

was collected by the originator of the message in thecourse of a sale or negotiations for a sale and theoriginator offered the addressee the opportunity to optout

b) the originator only sends promotional messages relatingto its similar products and services

c) the opportunity to opt out is provided by the originator tothe addressee with every subsequent message.


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PART VII - CRYPTOGRAPHY PROVIDERS

Register of cryptography providers

Registration requirement

Restriction on disclosing of information

Appointment of Controller and Regulations

Recognition of foreign secure electronic signatures

PART VIII REGULATION OF CERTIFICATION AUTHORITIES


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PART IX - LIMITATION ON LIABILITY OF SERVICEPROVIDERS Recognition of representative body

Conditions for eligibility

Mere conduit

Caching

Hosting

Information locations tools

Take-down notification

No general obligation to monitor

Other obligations not affected


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PART X - POWERS OF THE MINISTER Powers of the Minister to make regulations to:

designate an entity as a public body;

provide that electronic signatures for specified purposes;

provide that secure electronic signatures for specified purposes shallbe created by specified means;

provide formats by which information may be communicatedelectronically, whether or not there exist prescribed non-electronicforms;

exclude and/or exclude classes of transactions, documents, or rules oflaw from the application of this Act;

for the administration and regulation of domain names

for any other purpose for the more effective achievement of the

objects of the Act.


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THANK YOU

Prepared byGEORGE SIJE

Presented byPhilip Filikunjombe, Advocate

Resource Person

Presentation on E Transactions Bill.ppt

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