Indian Laws for Ecommerce Transactions

The validity of electronic transactions is established under the IT Act. The act establishes that an ecommerce transaction is legal if the offer and acceptance are made through a reasonable mode. For instance, a communication sent by an offeror to an offeree through indirect means, such as an email that passes multiple servers and spam mails, is not regarded as a reasonable mode under the IT act. Reasonable modes of acceptance in an ecommerce transaction are:

Direct mail from the offeree to the offeror. Acceptance by conduct, which is pressing an Accept button to an offer.

Additionally, the IT act governs the revocation of an ecommerce offer and acceptance. An ecommerce transaction is said to be complete when the offeror receives acknowledgment of the receipt of the offer. Besides, an offeror has the liberty to terminate an offer, provided its acceptance has not been communicated by the offeree.

Information Technology Act Amendments for Ecommerce Transactions

The Information Technology (Amended) Act, ITAA, was amended in 2008 to increase security of e-commerce transactions, with special provisions for legal recognition of digital signatures and electronic documents. Section 43A of ITAA holds ecommerce companies accountable for protection of personal data.

Electronic transaction law no 2 Presentation Transcript

1. Electronic Transaction Law No. 85 of 2001 Salem Zuhair Eisouh 2. Legislation in Jordan Constitution Law = 1- Ordinary law 2-Temporary law Regulations Custom 3. Introduction In the light of the rapid technological developments in our world , it has become necessary for states to keep pace with the technological revolution in order for them to become modern and advanced countries, or, at least , to be on the road to become so, by investing in modern technologies of communication of information, and through the development and investment in favor of public services. 4. (.Introduction (cont There is no doubt that the tremendous revolution that took place in the world of communications has led to a change in the means and methods of business transactions and expressions of the will for what is called now Electronic Data Interchange. In lieu of paper documents seeking the legislation of modern developments and keeping up with the technological developments of the countries, Jordanian legislators took the lead among their Arab counterparts and issued the Interim Electronic Transactions Act No. 85 for the year 2011 on 11/12/2001. This legislation comprised of the first Jordanian law in the field of information technology , which was the second Arab law in the field of e-commerce after the Tunisian law making room for other Arab countries, out of which was Dubai which enacted the Act on electronic exchanges and Bahrain which passed the Bahraini law of e-commerce. 5. (Introduction (Cont The Jordanian legislature came up with this law to put a legal framework that conforms with the international legislative framework in order to regulate the electronic transactions and to recognize all means of electronic data and electronic signatures in terms of their validity or invalidity. Moreover, the objective was the establishment of legal obligations on one side and the recognition electronic records on the other side. The Electronic Transactions Act allowed the establishment of authorities of authentication and electronic signatures for giving evidence in a given argument. 6. The law The law consists seven chapters divided into 41 articles. The law starts with the most important definitions of terms and concepts. The first chapter is entitled General Provisions and includes four articles. The second chapter is entitled The Record, the Contract, the email and the E-Signature and includes articles 7-18. The third chapter is entitled The Transferrable Electronic Bond and includes articles 19-24. The forth chapter is entitled Transfer of Electronic Funds. The fifth chapter is entitled Authentication of the Record and the E-Signature. The sixth chapter entitled Sanctions, and the seventh chapter entitled Concluding Provisions both include articles 39- 41. 7. Objectives of the law and the scope of itsapplication and the transactions to which it applies Objectives of the law: Article 3 of this law defines its objectives which facilitate the use of electronic means to conduct transactions taking into account any other laws and without modifying or omitting any provisions. A reference should be made to the international commercial customs and to the degree of progress in the application of this law as pointed in paragraph B in the same articles. 8. Objectives of the law and The scope of its application and the transactions to (..which it applies (cont Below is a summary of the objectives, which are drawn from the law itself and are selected from its provisions: Recognition of electronic means for giving evidence and making contracts, and giving the reasonable and acceptable justification prescribed for the existing contracting means in the ordinary non-electronic

environments. Enforcement of trust, promotion of e-commerce in the Jordanian market, and provision of e-commerce laws. 9. Scope of Law Operation According to Article 4 of the same law, the provisions of this law shall apply on the following: Electronic transactions, electronic records, electronic signature and and any electronic message. Electronic transactions adopted by any governmental department or official institutions, in whole or in part. 10. Definitions E-Transaction: a procedure, or a number of procedures, conducted electronically between two or more parties in order to establish obligations or reciprocal obligation on one or more parties related to any commercial deed, civil obligation or relationship with any governmental department. Electronic Records: records, contracts or emails established, delivered or stored by electronic means. Article 2 defines the electronic contract as the contract which is established electronically in whole or in part. Electronic Signature: the data that takes the form of letters, numbers, symbols, signs or other codes which are incorporated in an electronic, digital, optical or any other similar forms in an email or attached, added or related to it. Moreover, it has the features that specify the renewal of the identity of the person who signed it and distinguishes him/her from others for the purpose of approving his/her signature and the content of the email. Data Management System: The electronic systems utilized to institute, send, receive, manage, store or prepare information message in any other form. 11. (.Definitions (cont Electronic Medium: A computer program or any other electronic means used for the purpose of executing or responding to a procedure for the purpose of instituting, sending or receiving information message without personal intervention. The Institutor: The person, whether by himself or by proxy, who institutes or sends information. The Recipient: The person intended by the institutor to receive the information message. Authentication Procedures: The procedures taken in order to verify that the electronic signature or electronic record was instituted by a specified person, or the procedures taken to track the changes and mistakes that occurred in the electronic record after its institution including using means of analysis to identify the codes, words and numerals and deciphering the code and reverse retrieval or any other means or procedures that can accomplish the intended objective. 12. (.Definitions (cont Authentication Certificate: The certificate issued by the competent, licensed or recognized entity to verify the electronic signature of correspondent to a specified person in pursuance to the recognized authentication procedures. Identification Code: The code designated by the licensed or recognized entity to authenticate the concerned persons electronic contracts for the recipients use for the purpose of distinguishing the records issued by that person from others. Financial Institution: The licensed bank or financial institution authorized in dealing with monetary transfers in accordance with the provisions of laws in force. Illegitimate Records: Any monetary record in the clients account resulting from an e-mail sent in his name without his knowledge or approval. 13. Differentiation Here we must differentiate between the electronic signature and digital signature because they differ from each other. The e-signature is described by a special program which is a package of digital specifications taken from the body of the email sent through an encrypted system which reveals the validity of the signature. 14. Scope of Law Application a) The provisions of this Law shall apply to the transactions whose parties agree on their implementation by electronic means unless an

explicit text states otherwise. b) For the purposes of Article 5 an agreement between specified parties to implement specific transactions by electronic means shall not be considered binding to implementing other transactions by those means. 15. Analysis and the Opinion and Conclusion -Article 5- It seems that the legislature was confused in this matter: the basic principle is that the law applies to transactions to judgments on transactions that the parties agree on implementing by electronic means so that the law becomes applicable in accordance with the agreement, and this is to be inferred from the words: the provisions of the law shall apply on transactions on which their parties agree to implement by electronic means. Notwithstanding the above, if there is no agreement upon the execution of such transactions by electronic means the law shall not apply unless there is an agreement on the application as inferred from the clause: unless expressly stated otherwise. 16. Article 6: ExemptionsThe provisions of this Law shall not apply to the following: Contracts, documents and records organized in pursuance to special legislation in a specific manner or instituted by specific procedures, including: 1. Institution of a will and its amendment. 2. Institution of an endowment and amendment of its conditions. 3. Immovable property, disposal transactions including proxies related to same, their title deeds and instituting rights except lease contracts dealing with same. 4. Personal status proxies and transactions. 5. Notices dealing with annulment or revocation of water and electricity services contracts, health insurance and life insurance. 6. Pleadings, arguments, judicial notices and courts decisions. b) Securities except for what is provided for in special instructions issued by competent entities in pursuance to the Securities Law in force. 17. Principles, Conditions and Provisions Prescribed on theLegality and Legitimacy of Records, Contracts and Electronic Signatures Adoption of the principle that an electronic document is a functional equivalent of a written document, and an electronic signature is a functional equivalent of a handwritten signature. In order to achieve the objectives of the law, there must be an acknowledgment that an electronic document contractually replaces the written document and in the contract. Also, the effectiveness and validity of an electronic signature should be defined and recognized by the person dealing with e-commerce. 18. Conditions Governing the Equivalence of Electronic Records to Original Papers According to Article 8 of the Jordanian e-transactions states that a number of conditions should be collectively present to consider that an electronic record is equivalent to the original record, these conditions are: The information contained in that record is to be retained and stored so that it can, at any time, be referred to. If we look for this condition, we find that it is aimed and designed to be the most important pillar of the authoritative documents that prove the validity of evidence for review at any time. 19. ((..Cont Ability to keep the e-record in a form in which it can be disclosed, sent or received easily in any form by proving the accuracy of the information received when disclosed, sent or received. This condition is the so- called safety content or the nonarrival of change which is a technical system based on the specific technical standards which show the status of the original file and any amendments made on it, and the times at which such amendments were made. 20. Authenticity of the Print out of Electronic Documents With reference to Article 9 of the Electronic Transactions Act, the addressees submission of paper printouts of the

transactions conducted by electronic means and submitting it as a written extract meets the obligation determined by the legislation which requires the submission of the document or the transaction in writing, but these records are not binding for the addressee in case that the sender was unable to print, store or retain such records. 21. Information Message is a Valid way to Express the Will The electronic message shall be considered as a means of expressing the will legally admissible for offer or acceptance for contractual intent. 22. Electronic Transfer of Funds Each financial institute practicing electronic money transfer in accordance with the provisions of this Law and the regulations issued in pursuance shall abide by the following: a) Abide by the provisions of the Law of the Central Bank of Jordan, Banks Law and the regulations and instructions issued in pursuance. b) Implement procedures that would ensure the presentation of reliable client services and the preservation of banking secrecy. 23. Documentation Procedures The Jordanian legislator admitted that the documentation procedures be verified in terms of integrity of the constraint-mail, this has gained recognition in accordance with Article 30 of the Electronic Transactions Act which states If the documentation in accordance with the procedures accredited certification or documentation procedures commercially acceptable or agreed to by the parties involved. 24. Crimes Committed by Utilizing Electronic MeansArticle 38 states that: each person committing an act that constitutes a crime in accordance with the legislations in force by utilizing electronic means shall be penalized with imprisonment for a period not less than three months and not more than one year or a fine not less than three thousand Dinars and not more than ten thousand Dinars, or by both penalties. He shall be penalized with the harsher penalty if the penalty stipulated in these legislations exceeds the penalty stipulated in this Law. 25. 26. Bibliography1 - e-transactions law the provisional No. (85) for the year 2001. 2 Jordanian Civil Code No. (43) for the year 1976. 3 - Jordanian Trade Law No. (12) for the year 1966. 4 - Qhqua, d. Hoda, criminal protection for e- commerce, Amman. 5 committees entitled "criminal protection of the document e" d. Tawfik Ashraf Shams alDin. 6 - a lecture on e-commerce lawyer, Professor Yunus Arabs. 7 - UNCITRAL Convention on International Trade. 8 - College of Law, University of Mansoura. 27. Thank youSalem Zuhair Eisouh