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

Electronic Commerce Legislation Outline n n n n Focus on Ontario law Principles and Electronic Commerce Legislation Outline n n n n Focus on Ontario law Principles and Application of the Ontario 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 Electronic Commerce Legislation 2

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

Principles of E-Commerce Act “media neutral” - the law of electronic communications is the 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. 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. n Electronic Commerce Legislation 4

Principles of E-Commerce Act General rule: no discrimination n General protection: only on consent Principles of E-Commerce Act General rule: no discrimination n General protection: only on consent (express or implied)(real and relevant) n – 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 n NOTE: e-documents do not have to be more reliable than paper documents n Electronic Commerce Legislation 5

Application of E-Commerce Act n ALL legal relationships under Ontario law BUT: – named Application of E-Commerce Act n ALL legal relationships under Ontario law BUT: – named types of documents n n – – n 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) Electronic Commerce Legislation 6

What you can do with the ECA 1. Use an electronic document when something What you can do with the ECA 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” n – – – n Accessible to whom? Objective or subjective? Usable for the same purpose as the writing How long is “subsequent”? No standard of integrity beyond this. Electronic Commerce Legislation 7

What you can do with the ECA n n n 2. Sign with an What you can do with the ECA n n n 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 government to regulate methods Electronic Commerce Legislation 8

What you can do with the ECA 3. Use an electronic document as an What you can do with the ECA 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 n Electronic Commerce Legislation 9

What you can do with the ECA 4. Retain electronic records to satisfy a What you can do with the ECA 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 n Electronic Commerce Legislation 10

What you can do with the ECA 5. Enter into contracts electronically n Clicking, What you can do with the ECA 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: n – – n Intention to contract Consideration Nothing about when a message is effective Electronic Commerce Legislation 11

What you can’t do with the ECA 1. Compel someone to deal with you What you can’t do with the ECA 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 n Electronic Commerce Legislation 12

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

What you can’t do with the ECA n n 3. Ignore consumer protection and What you can’t do with the ECA n n 3. Ignore consumer protection and privacy law Consumer protection is under separate study – – – n 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 have national effect Ontario has health sector privacy legislation QC, AB, BC have private sector privacy legislation Electronic Commerce Legislation 14

What you can’t do with the ECA 4. Skip reading the law applicable to What you can’t do with the ECA 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 n – – n but if you can opt out, you can use e-docs you may be able to comply electronically Rules of court, land transfers, etc Electronic Commerce Legislation 15

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

What you have to be careful of 1. Security of e-documents and esignatures n What you have to be careful of 1. Security of e-documents and esignatures 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 n Electronic Commerce Legislation 17

What you have to be careful of n n 2. Providing information electronically Information What you have to be careful of n n 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 webmail or in course of transaction – except where the law provides otherwise Electronic Commerce Legislation 18

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

What you have to be careful of n n 4. Has your message been What you have to be careful of n n 4. Has your message been received? The ECA has a double rule on receipt: – – n n n designated system: presumed received when accessible and processible undesignated system: presumed received when addressee becomes aware of accessibility Evidence of accessibility may be scarce Spam filters create issues with the rule When in doubt: get acknowledgement Electronic Commerce Legislation 20

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

What you have to be careful of 6. Existing form requirements in contracts n What you have to be careful of 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 n Electronic Commerce Legislation 22

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

How ECA compares to PIPEDA n 3. Electronic evidence: – PIPEDA enacts Uniform Electronic How ECA compares to PIPEDA n 3. Electronic evidence: – PIPEDA enacts Uniform Electronic Evidence Act, and optional presumptions (s. 31. 4) n n n Presumption of attribution Presumption of integrity 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) – § Electronic Commerce Legislation 24

How ECA compares to other Canadian laws n SK Electronic Information and Documents Act How ECA compares to other Canadian laws n SK Electronic Information and Documents Act – n MB Electronic Commerce and Information Act – – – n MB Bill is “opt in” for functional equivalents Opt-in part is still not in force MB has some consumer protection too NS Electronic Commerce Act – n basically the same, except govt filing rules (2002 amdt) basically the same as UECA BC Electronic Transactions Act – no special “government” rules Electronic Commerce Legislation 25

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

How ECA compares to other Canadian laws QC Act to establish legal framework for How ECA compares to other Canadian laws QC Act to establish legal framework for information technology Uniform Electronic Commerce Act ____________ - “e-commerce” but frequently changed - “electronic” - Accessible so as to be usable for subsequent reference - Retention rules - Generic title - “technology-based” - Stability of document - Life cycle of document Electronic Commerce Legislation 27

How ECA compares to other Canadian laws Quebec statute ___________ - Link with creator 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 Electronic Commerce Legislation 28

How ECA compares to other Canadian laws n Quebec spells things out - UECA 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 Electronic Commerce Legislation 29

How ECA compares to USA Uniform Electronic Transactions Act (UETA) n UETA and ECA How ECA compares to USA 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 n Electronic Commerce Legislation 30

How ECA compares to USA n Federal legislation - E-SIGN – n Imposes UETA How ECA compares to USA n Federal legislation - E-SIGN – n Imposes UETA standards on state laws – – n Electronic Signatures in Global & National Commerce Act in force October 1/00 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 Electronic Commerce Legislation 31

What’s next n Electronic signatures – UN Model Law on Electronic Signatures n reliability 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 Electronic Commerce Legislation 32

International initiatives n UNCITRAL draft convention on the use of electronic communications in international 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 See also: UNCITRAL Model Laws n EU Directives: E-Signature, E-commerce n Electronic Commerce Legislation 33

Relation to Other Issues n Privacy – – – IPC said ECA is acceptable 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 Electronic Commerce Legislation 34

Relation to Other Issues n Consumer Protection – ECA has some protections – Educational 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 Electronic Commerce Legislation 35

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

Questions? n John D. Gregory, “Canadian Electronic Commerce Legislation”, (2002), 17 Banking & Finance Questions? n John D. Gregory, “Canadian Electronic Commerce Legislation”, (2002), 17 Banking & Finance LR 277 - 339 n http: //www. ulcc. ca – n n (notably under Commercial Law Strategy) john. d. [email protected] gov. on. ca [email protected] gc. ca – by subscription - request to John Gregory Electronic Commerce Legislation 37

Sources n Electronic Commerce Act 2000 (Ontario) – n http: //www. elaws. gov. on. Sources n Electronic Commerce Act 2000 (Ontario) – n http: //www. elaws. gov. on. ca/DBLaws/Statutes/English/00 e 17_e. htm Uniform Electronic Commerce Act – http: //www. ulcc. ca/en/us/index. cfm? sec=1&sub=1 u 1 – Implementation and related laws across Canada: http: //www. ulcc. ca/en/cls/index. cfm? sec=4&sub=4 b Electronic Commerce Legislation 38

Sources n Consumer Protection n Federal-provincial-terrritorial work – – n Internet Sales Harmonization Template, Sources n Consumer Protection n Federal-provincial-terrritorial work – – n Internet Sales Harmonization Template, 2001 http: //strategis. ic. gc. ca/epic/internet/inocabc. nsf/en/ca 01642 e. html Code of Practice for Consumer Protection in e-com http: //cmcweb. ca/epic/internet/incmccmc. nsf/en/fe 00064 e. html Ontario Consumer Protection Act 2002 – http: //www. e-laws. gov. on. ca/DBLaws/Statutes/English/ 02 c 30 a_e. htm n Regulations – Ontario Gazette Feb 5/05 – in force July 1/05 Electronic Commerce Legislation 39

Sources n Privacy – PIPEDA (Canada) – http: //laws. justice. gc. ca/en/P-8. 6/index. html Sources n Privacy – PIPEDA (Canada) – http: //laws. justice. gc. ca/en/P-8. 6/index. html – Personal Information Protection Act (BC) – http: //www. legis. gov. bc. ca/37 th 4 th/1 st_read/gov 38 -1. htm Personal Information Protection Act (AB) http: //www. canlii. org/ab/laws/sta/p 6. 5/20041104/whole. html – – – Personal Health Information Protection Act (ON) – http: //www. elaws. gov. on. ca/DBLaws/Statutes/English/04 p 03_e. htm Electronic Commerce Legislation 40

Sources n United Nations Model Laws – – n http: //www. unictral. org/english/texts/electcom/mlec. htm Sources n United Nations Model Laws – – n http: //www. unictral. org/english/texts/electcom/mlec. htm (Model Law on Electronic Commerce) http: //www. unictral. org/english/texts/electcom/mlelecsig-e. pdf (Model Law on Electronic Signatures) UNCITRAL draft Convention on ecommunications – – http: //www. uncitral. org/english/workinggroups/wg_ec/i ndex. htm http: //www. uncitral. org/english/sessions/unc-38/38 index-e. htm Electronic Commerce Legislation 41