Draft Bill on E-Transactions Presentation - Harmonizing ICT Policies

1. Presentation of DRAFT BILL ON E-TRANSACTIONS, 19-24 August,2013 Presenter/drafter: Adam Mambi, Email: adammambi@yahoo.co.uk Mobile: +255768291302/+255713291302 ITU HIPSSA Project: Supportfor Harmonization of the ICT Policies in Sub-Sahara Africa; Transposition of e-transaction Model Law to Zambia,

2. facilitate the appropriate use of e- transactions; • promote business and community confidence in e-transactions • fosters the development of e-commerce through the use of electronic documents and secure e-signatures; • provides for e-filing and submission of documents with public sector Agencies and promote efficient delivery of public sector services and good governance(promote e-government) • establishes the legal infrastructure (e.g.PKI) necessary to implement secure electronic commerce and to remove legal uncertainties over writing, original documents original evidence and signature requirements • promote the public and consumer confidence in the use Key Objectives of the Bill-e-transaction

3. Part one provides for preliminary provisions-Sections 1-5 • Short title and commencement-s-1 • Application-Union-s-2 • Interpretation-definitions of key terminologies –s-3 • Scope of the application-what transactions covered? .Are there any exclusion? –s-4 (negotiable instruments, title deeds, bills of lading, wills, certificates)?????? • Aims of the Bill/Act -5 & Annexture PART I

4. This Part provides functional equivalence between signatures, writing etc & data message, e-signatures Provides on how traditional functions under paper based method could be fulfilled through e-commerce techniques. Non-discrimination against e-information-6 Writing requirements-7 Signature requirements-8 PART TWO: EQUIVALENCE OF WRITTEN AND E-DOCUMENTS, E- COMMUNICATION, MANUSCRIPT AND DIGITAL SIGNATURES

5. Where a law requires information to be in writing, that requirement is met by an electronic communication • Where a law requires the signature (manuscript) of a person, that requirement is met by a secure e-signature Examples of statements/provisions on functional equivalence

6. PART THREE,E-GOVERNMENT SERVICESThis Part recognizes and promotes e-government services-functional equivalence: Sections 12-19 Acceptance of e-filling, digital signatures and issuing of documents in MDAsprovides for a manner of payment (e.g.e-payment)E-communicationspublication of document electronically instead of government Gazetterecognition of e-service delivery

7. Where any law requires any document to be served, sent or delivered Physically or using paper-based methods , the requirement of the law is fulfilled by the service, sending or delivery of the document by an electronic means if an information…. Where any law requires any payment to be made Physically or using paper-based methods, the requirement of the law is fulfilled if the payment is made by an electronic means and complies with any conditions imposed by the Government examples of statements of provisions with functional equivalence (SS-17-10)

8. This part gives legal recognition of electronic evidence. E-evidence is admissible and given weight under the BEST Evidence Rule: Sections 20-31 • Admissibility and evidentiary weight-20 • How to meet requirement of primary evidence(Best Evidence Rule) • establishes both the admissibility of data messages as evidence in legal proceedings and their evidential value. • provides useful guidance as to how the evidential value of data messages should be assessed • Conditions & rules of e-evidence e.g. integrity & reliability • emphasizes the importance of the integrity of the information to form for the basis of admissibility • sets forth the criteria for assessing integrity, • Requirement to produce an original document -25 • E-ballot PART IVADMISSIBILITY AND EVIDENTIAL WEIGHT ELECTRONIC EVIDENCE

9. This part recognizes formation of contracts/agreements electronically-sections 32-42 • Determines when& where the contract is concluded-38 • Determines time & place of dispatch-38,41 • Communication of proposal, offer and acceptance electronically • Formation & Validity of e-contracts -35 • Contract of sale by online auction-40 • Exclusions from application & Freedom of contract • Is not intended to interfere with the law on formation of contracts but rather to promote international trade by providing increased legal certainty as to the conclusion of contracts by electronic means. PART V: LEGAL RECOGNITION OF EONTRACTS/DISTANCE SELLIG CONTRACTS

10. 1.Where the law or any rule requires the contract of sale to be made offline with the requirement of fall of hammer or when the thing is knocked down as methods of obtaining the winner or last bidder as specified under any Law, that requirement is met by online auction using the time • 2. unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed by means of electronic communications. • 3. Where an e-communication is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that an electronic record was used for that purpose Examples of statements/legal provisions on functional equivalence in contracts

11. This part provides for The duties of suppliers to consumers online-S-43 • Online consumers are protected under this part. • It provides for the rights consumers online • The law obliges suppliers to provide the following information: • full contact details, including its place of business, e-mail addresses and telefax number(s); • main characteristics of the goods or services offered • the full price of the goods or services, including transport costs, taxes and any other fees or costs; • payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction any terms of agreement and the manner and period within which consumers can access and maintain a full record of the transaction PART VI CONSUMER PROTECTION

12. Cancellation right-S-44-A consumer has a right o cancel without reason and without penalty any transaction and any related credit agreement for the supply review the entire electronic transaction withdraw from the transaction, before finally placing any order Section 44 (2) The only charge that may be levied on the consumer is the direct cost of returning the goods. Consumer rights

13. Regulates Unsolicited goods, services or communications Protects consumers and other parties against Unsolicited goods, services or communications 46 (2) Unsolicited commercial communications may only be sent to addressees where the opt-in requirement is met 46 (3) The opt-in requirement will be deemed to have been met where: the addressee’s e-mail address and other personal information was collected by the originator of the message “in the course of a sale... the originator only sends promotional messages relating to its “similar products and services” to the addressee the opportunity to opt out is provided by the originator to the addressee with every subsequent message Unsolicited goods, services or communications

14. Deals with Registration of cryptography providers Secure electronic signature Cross-reference with Data Protection Act:e.g restriction on disclosing of information PART VII CRYPTOGRACY PROVIDERS AND SECURE E-COMMUNICATIONS AND E-SIGNATURES

15. Certification authority (CA), is an entity that issues digital certificates(DCs). CA is a trusted third party that is trusted by both the subject (owner) of the certificate and the party relying upon the certificate The DCs certifies the ownership of a public key. Indicates whether public key corresponds to the Private key Regulates and licensing of certification authorities Recognition of foreign certification authorities Empowers the Minister to make regulations-Sections 56 PART VIII Regulation of certification authorities

16. This Part mainly Provides for: Powers and duties of Accreditation Authority Criteria for accreditation S-64 Revocation or suspension of accreditation S-65 PART IX ACCREDITATION AND RECOGNITION OF AUTHENTICATION SERVICE PROVIDERS

17. Establishment and incorporation of .zm domain name authority-S-68 Functions and responsibility of the authority –S-69 Requirement of registration, Licensing of registrars and registries Power of the Minister to make Regulations Regarding registries, Dispute resolution PART X DOMAIN NAME AUTHORITY AND ADMINISTARTION SERVICE PROVIDERS

18. Provides for: Board of directors of Authority Staff of the Authority Powers to make Regulations regarding the domain name registration entity PART XI: GOVERNANCE AND STAFFING OF AUTHORITY

19. Regulates intermediaries • Provides limited liability and defences to intermediaries based on the following factors • Knowledge • Mere conduit • Caching • Hosting • Take-down notification PART XII: LIMITATION OF LIABILITY OF SERVICE PROVIDERS

20. Empowers law enforcers to accessing information Provides for grounds and reasons for accessing information  Prohibition of discloser of intercepted communication PART XIII: INTERCEPTION OF COMMUNICATIO

21. Regulates interception of communication • Provides limited liability and defences to intermediaries based on the following factors • Knowledge • Mere conduit • Caching • Hosting • Take-down notification PART XIV: ACCESS TO STORED COMMUNICATION

22. Electronic evidence must meet certain criteria to Empowers the Minister in collaborations with others MDAs to make Regulations for effective implementations of the Act PART XV: POWERS OF THE MINISTER

23. all parts that deal with e-transactions under the current Act will be repealed Exclusion/exception on certain transactions that need paper-based transactions PART XVI: REPEALING & SAVING PROVISIONS.

24. ENABLING E-COMMERCE E-TRANSACTIONS CONCLUSION: PARTS PRESENTED FALL UNDER THREE MAJOR PILLARS

25. Adam Mambi ITU International Consultant/ Expert for drafting e-transactions Bill adammambi@yahoo.co.uk Mobile: +255768291302/+255713291302 Union Internationale des Télécommunications International Telecommunication Union THANK YOU VERY MUCH