Electronic Commerce Act 2000 Fifteen Hot Tips and More

1. Electronic Commerce Act 2000Fifteen Hot Tips and More Toronto Computer Lawyers’ Group December 2000 John D. Gregory Ministry of the Attorney General

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 Electronic Commerce Act 2000

3. 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 Electronic Commerce Act 2000

4. 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. Electronic Commerce Act 2000

5. 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 Electronic Commerce Act 2000

6. 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) Electronic Commerce Act 2000

7. 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. Electronic Commerce Act 2000

8. What you can do with the ECA • 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 Electronic Commerce Act 2000

9. What you can do with the ECA • 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 Electronic Commerce Act 2000

10. What you can do with the ECA • 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 Electronic Commerce Act 2000

11. What you can do with the ECA • 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 Electronic Commerce Act 2000

12. 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 Electronic Commerce Act 2000

13. What you can’t do with the ECA • 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 Electronic Commerce Act 2000

14. What you can’t do with the ECA • 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 Electronic Commerce Act 2000

15. What you can’t do with the ECA • 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 Electronic Commerce Act 2000

16. What you can’t do with the ECA • 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 Electronic Commerce Act 2000

17. 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 Electronic Commerce Act 2000

18. What you have to be careful of • 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 Electronic Commerce Act 2000

19. What you have to be careful of • 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”? Electronic Commerce Act 2000

20. What you have to be careful of • 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 Electronic Commerce Act 2000

21. What you have to be careful of • 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? Electronic Commerce Act 2000

22. What you have to be careful of • 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 Electronic Commerce Act 2000

23. 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) Electronic Commerce Act 2000

24. 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 Electronic Commerce Act 2000

25. 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 Electronic Commerce Act 2000

26. 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 Electronic Commerce Act 2000

27. 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 Electronic Commerce Act 2000

28. 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 Electronic Commerce Act 2000

29. 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 Electronic Commerce Act 2000

30. 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 Electronic Commerce Act 2000

31. 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 Electronic Commerce Act 2000

32. 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 Electronic Commerce Act 2000

33. 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 Electronic Commerce Act 2000

34. 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/ Electronic Commerce Act 2000