See also, Ryder R. Where a data message is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose.
Where the parties are inter praesentes as when they are present at the same place or are linked by telephone, actual communication of the acceptance is essential for the formation of the contract. This is not so where the acceptance was effected by post with the prior actual or implied authority of the offeror as illustrated by the decisions in Adams v. In this context the question arises as to which side of the line an exchange of offer and acceptance by e- mail would fall, and the answer appears to be that the exchange of e-mail should be treated in the same way as the use of post for acceptance and the expedition theory would apply.
For instance, it makes it clear that unless otherwise agreed to by the parties if I make an offer to you by e-mail using my own computer, the e-mail is deemed to have been dispatched when it enters an information system outside my control.
Of these, the most interesting is the one contained in sub-paragraph d of that section which is to the effect that a contract formed by the interaction of an automated message system and a natural person or by the interaction of two or more automated message systems, shall not be denied validity or enforceability solely on the ground that there was no review by a natural person of the final contract or of each of the actions carried out by the automated message system.
Perhaps, a shortcoming of the Sri Lankan legislation is that it does not provide an answer where something goes wrong with the automated system such as an ATM machine when it interacts with an individual such as a customer of a Bank. It is instructive to note that in certain jurisdictions express provisions have been made to deal with problems of this nature. These are salutary provisions consistent with the fundamental purpose of the Act, which is, to remove barriers to electronic transactions while leaving the substantive law, e.
Suppose the members of the Bar Association consume a large amount of junk food, and the Modern Cafeteria of the Association continuously stocks its vending machines. The supplier who stocks these machines uses an EDI system to accept orders and process them electronically for immediate supply. In an effort to avoid frequent inventorying, the Bar Association installs a programme for the vending machines that will keep track of the supply of food in the machines. This is a case where there is no human review of, or intervention in, the final contract for the sale of the goods in question.
An astute jurist might find that the requisite consensus existed in the minds of the supplier and the Bar Association who installed the automated systems knowing fully well what they can achieve. The provisions of the Electronic Transactions Act only seek to negate any claim that the lack of human intent, at the time of contract formation, prevents contract formation.
When machines are involved, the requisite intention flows from the programming and use of the machine. Neither the Sri Lankan Act nor the legislation enacted elsewhere provide a solution to the problem, and a court might hold the parties to the contract however distorted it might be which is in every way their own making.
Use of Electronic Records and Signatures, filing of Applications, grant of Licences and Permits and payment of Fees and Charges in the Government Sector Ancient man wrote his history in stone before he stumbled on to paper. It appears that the history of the future man will be written on the electronic medium. To facilitate this process, the Electronic Transactions Act provides for the maintenance of records in Government Departments and other Institutions in the electronic form.
In this context, a question of some interest to lawyers as well as to notaries is whether where it is required by any law for a signature or a document to be notarised, acknowledged, verified, or made under oath, such requirement may be fulfilled through the electronic medium?
The provision while preserving the other requirements of notarial laws, simply allows the signing and information to be accomplished in an electronic medium On the other hand, Art. These provisions are important for lawyers in particular as they could be shaped up to provide for not only an electronic land registry but also an electronic court system in which pleadings could be electronically transmitted from a law office to the Court Registry and maintained therein electronically.
It significant that the Electronic Transactions Act also provides for electronic publication of proclamations, rules, regulations, orders, by-laws, notifications, or other matter required by law to be published in the Gazette. This means that even legislation enacted by Parliament and draft bills required to be published in the Gazette could be available in electronic form as well as on-line, and the publication of the Gazette in the traditional way by the Government Printer may be dispensed with.
Matters of Evidence: The Dual Regime Undoubtedly, the Electronic Transactions Act of will precipitate the process of transforming a paper based society to an electronic society e-Society and pave the way for greater electronic commerce e-Commerce and electronic governance e- Governance. The information that will accumulate in Government Departments, Banks, Financial Institutions and Business Establishments, not to mention lap top computers, mobile phones and other such devices will be enormous, and immensely valuable.
They can also be useful evidence, the reception of which would have inevitably posed a number of problems for the courts. This is largely because rules of evidence contained in the Evidence Ordinance59 were evolved long before the advent of modern electronic equipments and computers, and those rules have not always proved adaptable to evidence emanating from such modern devices. This is problematic in an electronic medium.
If one periodically saves the draft, the fact is that at times a document may be first saved to disc then to hard drive, and at others vice versa. The document may also be transmitted from one computer to another electronically, for example by e-mail. Colin Thome J. It is neither original evidence nor derivative evidence and in admitting such a document a Court must be satisfied that the document has not been tampered with. Under the law of Sri Lanka computer evidence is not admissible under any section of the Evidence Ordinance and certainly not under Section For an interesting illustration of the application of the rule see, D.
This is a dramatic turn- around of the famous hearsay rule. For a detailed discussion of the provisions of this Act, see Marsoof S. Certification Authority and the Certification of Service Providers The Electronic Transactions Act of empowers the relevant Minister, in consultation with the Minister in charge of the subject of Information and Communication Technology, to designate any Government Department, Public Corporation, Statutory Body, Institution, or authority or any branch or unit thereof as the Certification Authority CA for the purposes of the Act, by an order to be published in the Gazette.
While in most countries CSPs are required to be licenced to engage in the business of providing certification services, the Sri Lankan legislation does not generally insist on a licence, and even accreditation appears to be optional. In fact, the relevant Minister is specially empowered by the Act to specify by regulation, the procedure for the recognition of CSPs, the issue of licences to such providers and the categories of services required to be provided by them.
Considering the fact that the CSPs, irrespective of whether they are accredited or specially licenced, perform an important service which is in many ways similar to the work of a Notary Public who is required to attest signatures placed on deeds and certain other instruments, the question arises as to whether the regulatory and supervisory provisions of the Electronic Transactions Act are adequate to maintain public confidence in the authenticity, integrity and reliability of data messages, electronic documents, electronic records and other electronic communications.
While the policy of avoiding over-regulation is understandable in the light of the experiences of other nations, particularly India, which had to face difficulties due to the excessive rigidity of their legislation,78 what is disturbing is the absence of any penal provisions in the Sri Lankan Act to deal with errant service providers who may cause serious loss or damage to members of the public due to fraudulent, reckless or negligent conduct.
Furthermore, the Act also contemplates CSPs functioning without any licence or accreditation,82 which may not be desirable in view of the serious nature of their functions. To sum up, the Act follows a technology neutral and a minimalist approach, as regards the use of electronic signatures and the legal structure associated with the licensing or accreditation of Certification Service Providers83 Conclusions The Electronic Transactions Act is one of the most important pieces of legislation enacted by the Parliament of Sri Lanka in recent times.
It has succeeded to a great extent in facilitation electronic transactions, which will in turn help to transform a paper-based society in which all important records had been maintained for centuries in registries and record rooms to an electronic society e-Society. This will help us make vast strides not only in electronic commerce e-Commerce but also in electronic governance e-Governance. Provisions of the Act, supported by carefully drafted regulations can help bring about vast changes in how day to day affairs are conducted by government agencies, business establishments and individuals.
The provisions of the Act are so flexible that they can be utilised even to conduct general and local authorities elections through electronic means, and one problem that can crop up, to which technology would no doubt provide the answer, is how to preserve the secrecy of the ballet.
Electronic systems will make it easier for the public to interact with government departments, local authorities, Banks and business entities, and electronic documentation will facilitate the accumulation of a large mass of information which will be accessible on the press of a button. Such information could be vastly valuable. There are, however, two important concerns that have to be addressed by policy makers and legislatures.
The first concern relates to privacy. Although initially it was thought that the Electronic Transactions Act will be accompanied by another piece of legislation on Data Protection, it appears that the Information and Communication Technology Agency ICTA is now considering the formulation of a Code of Conduct to deal with these issues.
There is no doubt that with technological development, and in particular the advent of cookies,84 web bugs85 and net spies,86 invasion of privacy on a systematic basis has become a common occurrence.
In view of the major issues relating to privacy and data protection that could arise from the implementation of the Electronic Transactions Act, it will be necessary to enact legislation with the objective of protecting individuals against invasions of their privacy through electronic means.
The establishment of a Data Protection Authority which will ensure the recognition, promotion and protection of the privacy of individuals, and the conferment to all individuals of a right of access to information relating to them and to correct errors or inaccuracies therein, is very necessary.
It is also essential to provide remedies for interferences with the information privacy of an individual. Information privacy is of great importance to building confidence amongst traders, consumers and the public in regard to electronic transactions.
Privacy indeed is a right that is to be treasured. Electronic Transaction , Proclamation No. Related Posts Legislation. November 2, November 2, Abrham Yohannes. October 25, October 25, Abrham Yohannes. Previous: Proclamation No. Leave a Reply Cancel reply. Go to mobile version. Sorry, your blog cannot share posts by email.
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