electronic commerce act 2000 fifteen hot tips and more

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


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


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.


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


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)


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.



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



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



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



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


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



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



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



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



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


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



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



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”?



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



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?



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


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)


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


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


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


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


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


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


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


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


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


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


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/