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2009 Ottawa, ON 1999 Winnipeg, MB
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1999 Winnipeg, MB
Uniform Law Conference of Canada
Uniform Electronic Commerce
Act
Part 1 - Provision and Retention of Information
Legal relationships have long been based on paper
documentation. Many rules of law are expressed in language that suits documents
on paper. Over the past generation, however, paper has been giving way to
computer-generated communications. In the past decade, networked computers
and particularly the Internet have accelerated the replacement of paper and
spread it into new domains, notably to consumer and domestic transactions.
The effect of these developments on the law is uncertain.
To some extent the courts have come to terms with technology, to some extent
people made contracts to provide standards for computer communications, and
to some extent special legislation has clarified the rules. The Uniform Law
Conference of Canada adopted its Uniform Electronic Evidence Act in 1998.
The benefits of efficiency and interactivity that
flow from the expansion of electronic communications are reduced by persistent
legal uncertainty, however. In particular, it is difficult to be sure that
such communications will satisfy statutory rules that require writing, or
signatures, or the use of original documents. Many legal relationships,
especially contracts, depend on the intention of the parties. It has not
been clear to what extent such intention can be communicated automatically,
or by symbolic actions like clicking on an icon on a computer screen.
Numerous efforts have been devoted to resolving these
uncertainties. The international standard in that direction has been the
United Nations Model Law on Electronic Commerce, adopted by the General Assembly
of the United Nations in November, 1996.
(http://www.un.or.at/uncitral/english/texts/electcom/ml-ec.htm)
The Model Law seeks to make the law "media neutral", i.e. equally applicable
to paper-based and electronic communications. It does so by proposing "functional
equivalents" to paper, i.e. methods to serve electronically the policy purposes
behind the requirements to use paper. It does so in a "technology neutral"
way, i.e. without specifying what technology one has to use to achieve this
functional equivalence.
The result may be described as "minimalist" legislation.
The rules may appear very simple, even self-evident. They are also flexible,
allowing many possible ways of satisfying them. They are, however, a vital
step forward toward certainty. They transform questions of capacity ("Am
I allowed to do this electronically?") into questions of proof ("Have I met
the standard?"). This is a radical difference. Many computer communications
occur between people who have agreed to deal that way. (Indeed the Model
Law does not force people to use computer communications against their will.)
Without provisions like those of the Model Law, however, the legal effectiveness
of electronic transactions on consent may not be clear.
It is important to note that the Model Law does not
purport to improve the quality of documents on paper when they are replaced
by electronic documents. Defects of form or reliability or permanence that
people accept on paper will not affect the validity of electronic equivalents.
Parties in practice may ask for more assurance than bare validity gives them,
just as they may do for paper records. Oral contracts can be binding, but
many people want them in writing anyway. In any medium, the minimal requirements
for legal validity may not meet the standards for prudent business or personal
transactions. Removing barriers to electronic commerce does not require a
change in this philosophy.
The Uniform Electronic Commerce Act is designed to
implement the principles of the UN Model Law in Canada. It applies, however,
beyond the scope of "commerce", to almost any legal relationship that may
require documentation. A list of exceptions appears in section 2. The commentary
to each section explains the principles and, where necessary, the operation
of the section. Further assistance may be sought in the UN Guide to Enactment
of the Model Law, which is at the same World Wide Web address as the Model
Law, noted above.
The Uniform Act has three parts. The first part sets
out the basic functional equivalence rules, and spells out that they apply
when the people involved in a transaction have agreed, expressly or by
implication, to use electronic documents. This avoids the need to amend all
the many statutes that may state or imply a medium of communication.
This part applies some special rules to governments.
It has been widely considered, not just in Canada but in several other countries,
that the general permission to use electronic communications may expose
governments to an overwhelming variety of formats and media that they may
not have the capacity to handle and that may not work for their particular
purposes. Private sector entities can limit their exposure by contract;
governments often deal with people with whom it has no contract. Part 1 therefore
allows governments to set its own rules for incoming electronic documents.
Outgoing documents would have to conform to the general standards of the
Act, unless authorized to do otherwise by some other legislation.
Part 2 of the Uniform Act sets out rules for particular
kinds of communications, including the formation and operation of contracts,
the effect of using automated transactions, the correction of errors when
dealing with a computer at the other end of the line, and deemed or presumed
time and place of sending and receiving computer messages. Part 3 makes special
provision for the carriage of goods, to permit electronic documents in a
field that depends, on paper, on the use of unique documents, the creation
of which is challenging electronically.
1. The definitions
in this section apply in this Act.
(a) "electronic" includes
created, recorded, transmitted or stored in digital form or in other intangible
form by electronic, magnetic or optical means or by any other means that
has capabilities for creation, recording, transmission or storage similar
to those means and
"
electronically"
has a corresponding
meaning.
(b) "electronic signature" means information in
electronic form that a person has created or adopted in order to sign a document
and that is in, attached to or associated with the document .
(c)
"Government" means
(i) the Government of
[enacting jurisdiction];
(ii) any department, agency
or body of the Government of [enacting jurisdiction], [other than Crown
Corporations incorporated by or under a law of [enacting jurisdiction]];
and
[(iii) any city, metropolitan
authority, town, village, township, district or [rural municipality or other
municipal body, however designated, incorporated or established by or under
a law of [enacting jurisdiction].]
The definition of "electronic signature" does not
create a different legal meaning of signature in the electronic world. That
is why it refers to an intention to sign, thus importing the general law
on the mental state required for validity. The definition serves two purposes.
First, it makes clear that an electronic signature is simply electronic
information; it does not need to "look like" a handwritten signature, though
it is possible to digitize handwriting so that it is displayed in that way.
Second, it acknowledges that the electronic signature will not be "attached"
to an electronic document the same way as an ink signature is to paper. The
electronic signature may be "associated with" the document, by mathematical
logic or otherwise. The reliability of the association will affect the validity
of the signature. That question is dealt with in section 10, not in the
definition.
"Government" is broadly defined to include all parts
of the government of enacting jurisdictions. However, at the margins each
jurisdiction will have to decide when particular entities are more like private
sector bodies that should be subject to the general rules of the Act. Crown
Corporations are the most likely candidate for such treatment, but not all
of them may be given identical status in each jurisdiction.
Municipal governments may be problematic as well.
The reasons for separate rules for governments apply to municipalities. The
general permission to communicate electronically in section 17 may be very
useful. However, the number of municipalities in most enacting jurisdictions
creates the potential for diverse and incompatible technical standards, rendering
communications expensive if not impossible. Some kind of central coordination
may be advisable. This is beyond the scope of the Uniform Act, however. For
this reason the reference to municipalities has been square bracketed.
Application
(b) trusts created by wills or by codicils to
wills;
(c) powers of attorney, to the extent that they
are in respect of the financial affairs or personal care of an individual;
(7) For the purpose of subsection (5), the use of words and expressions
like "in writing" and "signature" and other similar words and expressions
does not by itself prohibit the use of electronic documents.
Comment: The Act will apply to all legal rules within the authority of the enacting jurisdiction, whether in statute, regulation, order-in-council or common law. This section sets out a short list of exceptions, such as wills and land transfers. The principle of exclusion is not that such documents should not be created electronically. Rather, they seem to require more detailed rules, or more safeguards for their users, than can be established by a general purpose statute like this one.
Subsections (2) and (6) are safety valves, allowing
the government to add to the list of exceptions, (2) by provisions of law,
(6) by types of document, in case examples of paper-based documents arise
after enactment of the Uniform Act where it is thought that electronic
communications should not substitute. If such examples are known at the time
of enactment, they can be added to the statutory list here. Advance health
care directives (if thought not to be included as a power of attorney for
personal care) and agreements on domestic or matrimonial matters might be
examples. In the interests of maximizing the benefit of electronic
communications, the Uniform Law Conference has kept the exceptions to a minimum.
The Act also allows the government to take the regulatory
exceptions off the list again, but not to delete by executive action the
exceptions made by statute. While each enacting jurisdiction may choose the
legal tool by which the list may be made and amended, the action should be
public, as is suggested by the bracketed term "statutory instrument".
There is no general exception for consumer transactions.
Consumers want to be sure of the legal effect of their electronic dealings
as much as anyone else. Many rules of consumer protection can be satisfied
by the functional equivalents to writing in the Uniform Act. However, the
general issue of consumer protection in electronic commerce is being separately
reviewed by a federal-provincial- territorial working group, and that group
may propose complementary harmonized legislation where appropriate.
Crown
3. This Act binds the Crown.
Comment: The Crown is covered by this Act, and
its electronic communications will be affected by it. Part 1 contains special
provisions for government communications that limits this section somewhat.
For greater certainty about the rest of the Act, this section has been
inserted.
Interpretation
4. The provisions
of this Act relating to the satisfaction of a requirement of law apply whether
the law creates an obligation or provides consequences for doing something
or for not doing something.
Comment: This
section ensures that the enabling rules of the Uniform Act apply broadly
to "requirements" to use paper, even if the law does not appear to create
an obligation. For example, a statute may say "An acceptance in writing is
valid", or "An acceptance not in writing is invalid", instead of "An acceptance
must be in writing". The principle of the rule in either case may have been
to ensure that oral communications would not be relied on. It was unlikely
to have been intended to prohibit an acceptance by electronic document.
Legal recognition
5. Information shall not be denied legal effect or enforceability
solely by reason that it is in electronic form.
Comment: This is the governing principle for the
Uniform Act. Legal effect may not be denied to electronic communications
only because of the electronic form. The reason for the double negative is
that the Uniform Act cannot guarantee the effect of electronic communications.
There may be many reasons to challenge validity of a particular electronic
document. The purpose of this section is to ensure that the electronic form
alone is not such a reason.
Much of Part 1 of the Uniform Act deals with particular
form requirements, e.g. that information be in writing, or signed. If the
law does not require particular forms or media, people should be able to
provide information electronically under current law. Section 5 will help
remove all doubt, by barring discrimination based on the medium of communication.
For example, if someone has to give notice to someone else, electronic notice
will satisfy that requirement. Section 5 simply underlines that fact.
6.(1) Nothing in this
Act requires a person to use or accept information in electronic form, but
a person's consent to do so may be inferred from the person's
conduct.
(2) Despite subsection (1), the consent of the
Government to accept information in electronic form may not be inferred by
its conduct but must be expressed by communication accessible to the public
or to those likely to communicate with it for particular purposes.
Comment: This section ensures that the Act is not used to compel people to use electronic documents against their will. Many people are still uncomfortable with such documents, and of course many others do not yet have the capacity to use them. Nothing "in this Act" requires the use of such documents. However, people can bind themselves to use them, by contract or by practice.
Handing out a business card with an e-mail address in some circumstances
may be taken as consent to receive e-mail for the purposes of that business,
though possibly not for all purposes. Likewise, placing an order through
a web site may be consent to deal with that vendor electronically, though
that consent could be withdrawn. The effectiveness of a consent found in
a standard form (not negotiated) contract may be open to dispute without
some action to show it was intended. Failing to respond to an electronic
message is not likely to constitute consent to receive the message in that
form, if there is no other evidence of consent to the kind of electronic
message received.
This consent rule does not undermine the usefulness
of the Uniform Act, which aims at certainty, not compulsion. The Act seeks
to give legal effect to electronic documents used by parties who want to
use them. It does not give people a calculated or bad faith way out of
transactions based on electronic communications, by "strategic" withdrawal
of consent. The reality of consent and the effect of a purported withdrawal
of consent will have to be judged on the circumstances of particular cases.
Requirement for information
to be in writing
7. A requirement under
[enacting jurisdiction] law that information be in writing is satisfied by
information in electronic form if the information is accessible so as to
be usable for subsequent reference.
Comment: The Model Law takes as the basic function
of writing the establishment of memory, that is the durable record of
information. As a result, the equivalent of this function can be achieved
if an electronic document is accessible so as to be usable for subsequent
reference. "Accessible" means understandable as well as available. "Subsequent
reference" does not specify a time for which the electronic document must
be usable, any more than a piece of paper is guaranteed to last.
Providing information in writing
(a) if
the electronic document that is provided to the other person is accessible
by the other person and capable of being retained by the other person so
as to be usable for subsequent reference, and
(b) where
the information is to be provided to the Government, if
(i) the
Government or the part of Government to which the information is to be provided
has consented to accept electronic documents in satisfaction of the requirement;
and
(ii) the
electronic document meets the information technology standards and
acknowledgement rules, if any, established by the Government or part of
Government, as the case may be.
Government may apply information technology standards, which would extend
at least to hardware and software specifications and rules on the medium
of communication (diskette, the Internet, dedicated phone line, and so on.)
Government may also choose to make rules about acknowledgements, where
information is to be provided to it, so the person submitting information
has evidence that the information is received.
9. A requirement under
[enacting jurisdiction] law for a person to provide information to another
person in a specified non-electronic form is satisfied by the provision of
the information in an electronic document,
(a)
if the information is provided in the same or substantially the same form
and the electronic document is accessible by the other person and capable
of being retained by the other person so as to be usable for subsequent
reference, and
(b) where
the information is to be provided to the Government, if
(i) the Government or the part of Government to which
the information is to be provided has consented to accept electronic documents
in satisfaction of the requirement; and
(ii) the
electronic document meets the information technology standards and
acknowledgement rules, if any, established by the Government or part of
Government, as the case may be.
Comment: Sometimes
writing requirements are more precise. Statutes or regulations may prescribe
a form for presenting the information. This section describes the functional
equivalent of those requirements. Electronic documents must have the same
or substantially the same form as the requirement - format is a vital part
of meaning.
The same rules for government documents apply as did in section 8.
Signatures 10. (1) A requirement under [enacting jurisdiction] law for the signature of a person is satisfied by an electronic signature.
(2) For the purposes of subsection (1), the [authority responsible
for the requirement] may make a regulation that,
(a) the electronic signature
shall be reliable for the purpose of identifying the person, in the light
of all the circumstances, including any relevant agreement and the time the
electronic signature was made; and
(b) the association of the electronic signature
with the relevant electronic document shall be reliable for the purpose for
which the electronic document was made, in the light of all the circumstances,
including any relevant agreement and the time the electronic signature was
made.
(a) the Government or the
part of Government to which the information is to be provided has consented
to accept electronic signatures; and
(b) the electronic document
meets the information technology standards and requirements as to method
and as to reliability of the signature, if any, established by the Government
or part of Government, as the case may be.
Comment: A
signature may mean many things in law, but the essential function is to link
a person with a document. A signature without a document is only an autograph.
This section therefore makes an electronic signature, as defined, function
as a signature in law. The definition requires that the information purporting
to constitute the signature be created or adopted by a person with the intent
to sign the document, and that it be associated in some way with the document.
Someone who alleges that an electronic signature meets a signature requirement
will have to prove these characteristics to the satisfaction of the court
or other decision maker.
The general law does not set any technical standard
for the production of a valid signature. The essential question is the intent
of the person who created the mark or symbol alleged to be a signature. This
would normally proved by evidence extrinsic to the document, though the position
of a name written in ink may lead readily to the conclusion that it was intended
to be a signature. Evidence of intent of electronic signatures will develop
with practice. Although the UN Model Law makes an electronic signature meet a test of appropriate reliability in order to meet a signature requirement, the Uniform Law Conference felt that such a
test would detract from the "media neutrality" of the Uniform Act. However,
where the authorities responsible for a signature requirement take the view
that the requirement does imply some degree of reliability of identification
or of association with the document to be signed, they may under subsection
(2) make a regulation to impose a reliability standard. The language of
subsection (2) is based on that in the Model Law.
Signatures submitted to government must conform to
information technology requirements and also to any rules about the method
of making them or their reliability. Different departments may have different
standards for such matters, depending on what they need to do with the signed
information.
Provision of originals
11. (1) A requirement
under [enacting jurisdiction] law that requires a person to present or retain
a document in original form is satisfied by the provision or retention of
an electronic document if
(a) there exists
a reliable assurance as to the integrity of the information contained in
the electronic document from the time the document to be presented or retained
was first made in its final form, whether as a paper document or as an electronic
document;
(b) where the document in original form
is to be provided to a person, the electronic document that is provided to
the person is accessible by the person and capable of being retained by the
person so as to be usable for subsequent reference; and
(c) where the document in original form is to
be provided to the Government,
(i) the
Government or the part of Government to which the information is to be provided
has consented to accept electronic documents in satisfaction of the requirement;
and
(ii) the
electronic document meets the information technology standards and
acknowledgement rules, if any, established by the Government or part of
Government, as the case may be.
(2) For the purpose of paragraph (1)(a),
(a) the criterion
for assessing integrity is whether the information has remained complete
and unaltered, apart from the introduction of any changes that arise in the
normal course of communication, storage and display;
(b) the standard of reliability required
shall be assessed in the light of the purpose for which the document was
made and in the light of all the circumstances.
Comment: The Model Law considers the basic function
of requiring an original document to be to support the integrity of the
information in it. It is presumably harder to alter an original than a copy.
This section makes an electronic document function as an original if there
are sufficient assurances of integrity of the information in it. This is
similar to the standards for meeting the best evidence rule in section 4
of the Uniform Electronic Evidence Act and in article 2838 of the Civil Code
of Quebec. In addition, the rule requires the equivalent to writing, as set
out in section 7. The standard for the assurances of integrity of the information
varies with the purpose of the document, just as the degree of scrutiny of
the integrity of a paper document will vary with its use. The usual rules
about government apply in this section too.
Retention of
documents
13. A requirement under [enacting jurisdiction] law to retain a document
is satisfied by the retention of an electronic document if
(a) the electronic document is retained in the format in which
it was made, sent or received, or in a format that does not materially change
the information contained in the document that was originally made, sent
or received;
(b) the information in the electronic document will be accessible
so as to be usable for subsequent reference by any person who is entitled
to have access to the document or who is authorized to require its production;
and
(c) where the electronic document was sent or received, information,
if any, that identifies the origin and destination of the electronic document
and the date and time when it was sent or received is also retained.
Record managers and archivists make clear that
information about the records are important to understanding them, or even
knowing what they are. However, the Uniform Act does not require more of
such contextual information (sometimes known as "metadata") than does the
current law about documents on paper. It does say that if an electronic document
is transmitted, then any information available about the time of its transmission
should be kept as well as the document itself.
This is more than is required for documents on paper,
since someone who receives a paper document in the mail is not required to
keep the envelope or other mailing information. However, the Act does not
require the information to be created if it is not there. Again we distinguish
between good practices and legal requirements.
The standard for electronic record retention is similar
to that for original documents, that the integrity of the information be
maintained and be accessible to those who have a right to see it. Satisfying
the requirements for originals under section 11 is somewhat more stringent
as to form. Not all retention requirements will demand the original document.
Where they do, section 11 will apply as well as section 13.
The Act does not mention the time for which such
records may be retained, since the time will not change with the medium of
storage. Nor does it expressly require that the hardware and software used
to store and read the information be kept current, but that is implied by
the need for continued accessibility. The law does not prescribe the technology,
any more than it requires a certain kind of paper or ink or other support
for traditional records.
Copies
14. Where a document may be submitted in electronic form, a requirement
under a provision of [enacting jurisdiction] law for one or more copies of
a document to be submitted to a single addressee at the same time is satisfied
by the submission of a single version of an electronic document.
Comment: With
electronic documents, copies are hard to distinguish from originals. In addition,
electronic documents are usually very easy to reproduce. Requirements of
statutes and regulations for people to submit certain numbers of copies of
documents are hard to read in the electronic context, therefore. Must one
send in several diskettes, or send the same e-mail message several times,
or attach the same document several times to the same e-mail? This section
resolves those issues by requiring the person receiving the information to
make the copies.
Other requirements
continue to apply
15. Nothing in this Part limits the operation of any requirement
under [enacting jurisdiction] law for information to be posted or displayed
in specified manner or for any information or document to be transmitted
by a specified method.
Comment:
Sometimes particular forms of display are required, or particular forms of
communication. The electronic document must also follow the other form rules.
Sometimes such rules may mean that a paper document must be used. However,
the words "in writing" or "signed" themselves do not constitute a "specified
manner" or "specifed method" for these purposes, or the point of much the
Act would be undermined. If the rules say that regular mail must be used
to deliver information, the parties to the communication may agree on other
means, if the source of those rules allows such variation, expressly or by
implication.
16. (1) If a provision of [enacting jurisdiction] law requires a person
to communicate information , the minister of the Crown responsible for the
provision may prescribe electronic means to be used for the communication
of the information and the use of those means satisfies that requirement.
(3) A provision of [enacting jurisdiction] law
that authorizes the prescription of a form or the manner of filing a form
includes the authority to prescribe an electronic form or electronic means
of filing the form, as the case may be.
(4) The definitions in this subsection apply in
this section.
(a) "filing" includes
all manner of submitting, regardless of how it is designated.
(b) "prescribe" includes all manner of
issuing, making and establishing, regardless of how it is designated.
Comment: Much
information must be submitted to government or to private persons on specific
forms, set out in statute or more commonly prescribed in regulations. Rather
than require governments to amend all the authorizing texts, this section
allows them to provide electronic equivalents to the forms designed for and
often presumed to be paper. The first subsection applies where information
is to be provided but without a specified form, to allow the government to
create a form. Subsection (2) deals with forms in statutes and subsection
(3) with forms in regulations. Subsection (2) does not specify how the electronic
equivalent of a statutory form should be created. Subsection (3) says that
a form authorized to be made by regulation must be given its electronic
equivalent by regulation. Enacting jurisdictions may choose whether they
wish to allow for administrative forms, especially where a paper-based form
is already presecribed.
Collection, storage, etc.
17. (1) In the absence of an express provision in any [enacting jurisdiction]
law that electronic means may not be used or that they must be used in specified
ways, a minister of the Crown in right of [enacting jurisdiction] or an entity
referred to in subparagraphs 1(c)(ii) [or (iii)] may use electronic means
to create, collect, receive, store, transfer, distribute, publish or otherwise
deal with documents or information.
18. (1) A payment that
is authorized or required to be made to the Government under [enacting
jurisdiction] law may be made in electronic form in any manner specified
by [the Receiver General] for the [enacting jurisdiction].
(2)
A payment that is authorized or required to be made by the Government may
be made in electronic form in any manner specified by the [Receiver General]
for the [enacting jurisdiction].
Comment: This
Part gives general guidance to points of law that may be in doubt in a world
of electronic communications. Unlike the provisions of Part 1, this Part
does not deal with specific requirements of the law. It applies to common
law rules of contracts, and supplements them with a few rules that appear
useful to resolve common difficulties in using such communications. Government
communications are included in this Part.
Definition of "electronic
agent"
19. In this Part, "electronic agent" means a computer program
or any electronic means used to initiate an action or to respond to an electronic
documents or actions in whole or in part without review by a natural person
at the time of the response or action.
Comment: Computer
transactions are largely automated transactions. The novelty of
The use of the term "electronic agent" is widespread.
The law of agency however plays no part in this discussion. An electronic
agent is a tool, not an agent in law.
20. (1) Unless the parties agree otherwise, an offer or the acceptance
of an offer, or any other matter that is material to the formation or operation
of a contract, may be expressed
(a) by means of an electronic document; or
(b) by an action in electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise
communicating electronically in a manner that is intended to express the
offer, acceptance or other matter.
(2) A contract shall not be denied legal effect or enforceability
solely by reason that an electronic document was used in its formation.
Comment: The
Act does not purport to change the general law of contracts. This section
ensures that electronic communications are capable of conveying the kinds
of intention that are necessary to support contractual relations. In particular,
actions that do not involve detailed language, such as clicking on icons
on computer screens, are expressly made acceptable for contract purposes.
Involvement of electronic agents
21. A contract may be formed
by the interaction of an electronic agent and a natural person or by the
interaction of electronic agents.
Comment:
The law has been unclear whether automated means of communication such as
electronic agents could convey the intention needed to form a contract where
no human being reviewed the communication before the contract was made. This
section makes it clear that this can be done, both where a natural person
communicates with an electronic agent and where a communication has an electronic
agent at both ends.
Errors when dealing with electronic
agents
22. An electronic document made by a natural person with the electronic
agent of another person has no legal effect and is not enforceable if the
natural person made a material error in the document and
(a) the electronic agent did not provide the natural person
with an opportunity to prevent or correct the error;
(b) the natural person notifies the other person of the error
as soon as practicable when the natural person learns of it and indicates
that he or she made an error in the electronic document;
(c) the natural person takes reasonable steps, including steps
that conform to the other person's instructions to return the consideration
received, if any, as a result of the error or, if instructed to do so, to
destroy the consideration; and
(d) the natural person has not used or received any material
benefit or value from the consideration, if any, received from the other
person.
Comment: The
law has rules about the effect of mistakes. Particular concerns have been
expressed about computer communications, however, for two reasons. First,
it is easy to hit a key when typing quickly, or click a mouse on the wrong
spot on a screen, and by doing so send a command with legal consequences
("the single keystroke error"). Second, much electronic commerce is done
by electronic agents, as noted in the comment to the previous section. The
electronic agents may not be programmed to respond to a subsequent message
saying "I didn't mean that."
This section supplements the general law of mistake
where an electronic document is created or sent in error by a natural person
to an electronic agent. The person who sends it must give notice of the error
as soon as practicable, respond to instructions, and not benefit from the
mistake.
In addition, the section applies only if the legal
entity to which the message was sent did not provide a method of preventing
or correcting the error. The Act does not tell people how to do this, but
one may imagine a message on a screen saying "You have ordered X at $Y. Is
this correct?" If the person confirms the first order, this section would
not apply. This provision gives online merchants a way of giving themselves
a good deal of security against allegations of mistake, and encourages good
business practices in everybody's interests.
23. (1) Unless the
originator and the addressee agree otherwise, an electronic document is sent
when it enters an information system outside the control of the originator
or, if the originator and the addressee are in the same information system,
when it becomes capable of being retrieved and processed by the addressee.
(a) when it enters an information system designated
or used by the addressee for the purpose of receiving documents of the type
sent and it is capable of being retrieved and processed by the addressee;
or
(b) if the addressee has not designated or does
not use an information system for the purpose of receiving documents of the
type sent
, when the addressee becomes
aware of the electronic document in the addressee'
s information system and
the electronic document is capable of being of being retrieved and processed
by the addressee.
(3) Unless the originator
and the addressee agree otherwise, an electronic document is deemed to be
sent from the originator's place of business and is deemed to be received
at the addressee's place of business.
(4) For the purposes of subsection (3)
(a) if the originator or the addressee has more
than one place of business, the place of business is that which has the closest
relationship to the underlying transaction to which the electronic document
relates or, if there is no underlying transaction, the principal place of
business of the originator or the addressee; and
(b) if the originator or the addressee does not
have a place of business, the references to "place of business" in subsection
(3) are to be read as references to "habitual residence".
This section provides that a message is sent when
it leaves the control of the sender. This means effectively that the sender
cannot recall it any more, whether from the original system or from some
other system acting as dispatch agent or computing service. If the sender
and the addressee are in the same system - say a big system like sympatico.ca
or aol.com - then the message is sent when the addressee could retrieve and
process it.
The section provides a presumption, not a rule, on
when a message is received. Current practices of storing and checking messages
suggested that it was premature to create any rule about receipt. The UN
Model Law deems a message to be received when it enters an information system
within the control of the addressee, or where it is accessible to the addressee.
However, people may not check their e-mail regularly, especially if they
have several addresses. The section says that if they designate an address,
or use it for a purpose, then they will have a duty to check that address
for messages.
If the addressee does not designate or use an address
for the purpose for which someone wants to send a message, then the message
is not presumed to be received until the address has notice of it, and is
able to retrieve it and process it. The section does not require actual retrieval
and processing, in order to prevent people from preventing receipt by refusing
to open messages that they could open if they chose to. However, the consent
principle of section 6 continues to operate, so someone who is told that
an electronic message is available on his or her system may still be able
to decline to deal electronically at all and insist that a writing requirement
be satisfied on paper.
Subsection (2) does not say "unless otherwise agreed",
as do subsections (1) and (3). This is in part because it is a presumption.
Where a presumption applies rather than a rule, the parties may be able to
agree to the existence of facts that qualify for the presumption, thus in
effect altering the burden of proof.
If the addressee
designates a system by agreement or by conduct, that will lead to a presumption
of receipt. If the sender can show that the message entered the designated
system and was retrievable, the addressee may have trouble rebutting the
presumption. Parties may also agree on what the addressee is capable of
processing. Allowing for an agreement to make receipt easier to show, e.g.
by agreeing that a message is received when sent, was not thought appropriate
for electronic communications at this time.
It may be that ISPs will not have the logs or other
evidence of the time at which messages were received in their systems. Senders
who really need to know for sure that their messages have been received will
want to get evidence of actual receipt, such as acknowledgements from the
addressees.
The section does follow the Model Law in providing
that messages are presumed to be sent from and received at the principal
place of business of the sender or recipient. Computer servers are often
in different places, and people may access messages from different places.
Unless the parties agree otherwise, these variations should not affect the
legal rights arising from the communications.
Actions related to contracts of carriage of goods
24. This Part applies to any action in connection with a contract
of carriage of goods, including, but not limited to,
(a) furnishing the marks, number, quantity or weight of goods;
(b) stating or declaring the nature or value of goods;
(c) issuing a receipt for goods;
(d) confirming that goods have been loaded;
(e) giving instructions to a carrier of goods;
(f) claiming delivery of goods;
(g) authorizing release of goods;
(h) giving notice of loss of, or damage to, goods;
(i) undertaking to deliver goods to a named person or a person
authorized to claim delivery;
(j) granting, acquiring, renouncing, surrendering, transferring
or negotiating rights in goods;
(k) notifying a person of terms and conditions of a contract
of carriage of goods;
(l) giving a notice or statement in connection with the performance
of a contract of carriage of goods; and
(m) acquiring or transferring rights and obligations under
a contract of carriage of goods.
Comment: This
section lists the types of activity that may be affected by the rules in
this Part.
Documents
25. (1) Subject to subsection (2), a requirement under [enacting
jurisdiction] law that an action referred to in any of paragraphs
24(a) to (m) be carried out in writing or by using a paper
document is satisfied if the action is carried out by using one or more
electronic documents.
(2) If a right is to be granted to or an obligation is to be acquired
by one person and no other person and a provision of [enacting jurisdiction]
law requires that, in order to do so, the right or obligation must be conveyed
to that person by the transfer or use of a document in writing, that requirement
is satisfied if the right or obligation is conveyed through the use of one
or more electronic documents created by a method that gives reliable assurance
that the right or obligation has become the right or obligation of that person
and no other person.
(3) For the purposes of subsection (2), the standard of reliability
required shall be assessed in the light of the purpose for which the right
or obligation was conveyed and in the light of all the circumstances, including
any relevant agreement.
(4) If one or more electronic documents are used to accomplish an
action referred to in paragraph 24(j) or (m), no document in
writing used to effect the action is valid unless the use of electronic documents
has been terminated and replaced by the use of documents in writing. A document
in writing issued in these circumstances must contain a statement of the
termination, and the replacement of the electronic documents by documents
in writing does not affect the rights or obligations of the parties involved.
(5) If a rule of [enacting jurisdiction] law is compulsorily applicable
to a contract of carriage of goods that is set out in, or is evidenced by,
a document in writing, that rule shall not be inapplicable to a contract
of carriage of goods that is evidenced by one or more electronic documents
by reason of the fact that the contract is evidenced by electronic documents
instead of by a document in writing.
Comment: This
section permits the use of electronic documents for the carriage of goods,
if the documents comply with this section. Subsection (2) is the electronic
functional equivalent of a unique document. If rights are to be given to
one particular person, then the electronic document must be in a form that
gives reliable assurance that the rights or obligations represented by the
document are those of that person and no other. The Act does not say how
this might be done. As elsewhere, it provides the legal consequences for
doing it.
Subsection (4) guards against the risk that no two
media can simultaneously be used for the same purpose. While it may happen
that someone who starts dealing with electronic documents may have to switch
to paper at some point, this section sets out rules to ensure that everyone
will know which version of a document is effective.
Subsection (5) ensures that other rules about documents
for the carriage of goods, such as the Hamburg Rules applicable under the
Carriage of Goods by Water Act, apply to electronic documents though
the terms of these rules seem to contemplate paper. Not only are electronic
documents permissible in general, but their use does not take the documents
out of the scope of such compulsory rules.
Notes on sources and comparisons
United Nations Model Law on Electronic Commerce
This is the main source of the principles of the Uniform Act.
United States - Uniform Electronic Transactions Act
This is the main American state-level initiative on e-commerce, the product
of the National Conference of Commissioners on Uniform State Laws. Reports
of the meetings of the Drafting Committee and related documents and commentary
can be found in the ETAForum.
The first country in the world to adopt the UN Model Law was Singapore.
Australia
Australia has published a thorough analysis of how the Model Law could be
applied in a common law federal state. It prepared a draft statute for public
consultation, and on June 30, 1999, introduced a bill in Parliament.
United Kingdom
The United Kingdom has been working with similar principles. Its draft
legislation was presented in July 1999.
New Zealand
The New Zealand Law Reform Commission reported on the principles of the UN
Model Law and their potential application in New Zealand.
Canada
The federal government introduced legislation to implement the principles
of the Model Law to federal legislation in 1998, in Part 2 of Bill C-54,
the Personal Information Protection and Electronic Documents Act.
Some provinces have general statutes permitting electronic filing of information
with government, usually in a manner to be prescribed in regulations, program
by program or statute by statute.
Business Regulation Reform Act, S.O. 1994 c. 32
Much provincial legislation is on line at
http://legis.acjnet.org/
Future work on signatures
A number of bodies are trying to advance the law on electronic signatures,
usually by giving special status to signatures with particular characteristics.
Among them are the United Nations Commission on International Trade Law
(UNCITRAL) and the European Union. Canada's Bill C-54, noted above, contained
provisions about "secure electronic signatures".
UNCITRAL:
European Union:
August 1999
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