Eurasian i-Policy Network

Is an agreement valid and binding if it is made by email or at a Web site? In many countries, the law requires that contracts must be "in writing" or must be "signed." What do these words mean in the context of the Internet? Similar issues arise in connection with records or forms required by law to be filed with the government: how is it possible to have e-government if many laws require government forms or statements to be "signed" or filed "in writing?"

To a limited extent, these questions can be resolved fairly simply by a law providing that "a signature, contract or other record may not be denied legal effect, validity or enforceability solely because it is in electronic form."

The United Nations Commission on International Trade Law (UNCITRAL) adopted a model law on electronic commerce in 1996.

Legislation based on the UNCITRAL model has been adopted in several countries, including: Australia, Bermuda, Colombia, France, Hong Kong Special Administrative Region of China, Mexico, Ireland, Philippines.
There may, however, need to be exceptions to the general acceptability of electronic documents, in cases of particularly momentous matters. The US law, for example, does not apply to wills (documents for the distribution of property upon death) nor to divorce or child adoption matters. Also, the use of electronic means must be voluntary and mutually acceptable to the parties; for example, businesses cannot avoid consumer protection responsibilities by posting required information only online.
There is another set of more difficult questions not resolved by the minimalist approach described above - questions that have not been fully resolved in any country. One of these difficult questions is: How do you ensure that a person you have never met face to face is the person he claims to be? This is the problem of "identification" or "authentication." A related question is how do you prevent someone from avoiding an electronic contract by claiming that he never sent the message, arguing, for example, that someone else was pretending to be him online? This is the problem of "non-repudiation" - making sure that a party cannot deny or repudiate an agreement. A third important question is how do you ensure that one party (or a hacker in the communications stream) has not tampered with the electronic record to change the terms of the deal? This is the question of "integrity."

Creating the Legal Framework for Information and Communications Technology Development: The Example of E-Signature Legislation in Emerging Market Economies, by James X. Dempsey (2003) English Russian

This article examines the role of e-signature laws in creating the legal framework for e-commerce in developing and transitional countries. It argues that an early focus on electronic signature laws can be a distraction from more important reforms necessary to support e-commerce and information and communications technology development (notably telecommunications liberalization, support for entrepreneurship, transparency, banking reform). The article outlines an incremental legal reform strategy for emerging economies to address the issues surrounding electronic documents and e-signatures, and it recommends as an initial step legal reform that recognizes contracts entered into by businesses that have agreed by traditional means to technical standards for electronic contracts. For e-government applications, this article suggests steps governments may take to experiment with authentication systems (including possibly digital signatures). It recommends that governments hesitate before setting up regulatory systems to license technologies or service providers for e-commerce. Furthermore, it identi?es broader lessons for those interested in legal reforms to support growth of the Internet as a component of development, stressing the importance of basing legal reform efforts on a sensitive analysis of local needs and actual business practices.

Digital Signatures

EiPN in the world


© 2005 Eurasian i-Policy Network				Contact person:Tattu Mambetalieva E-mail: tattu@elcat.kg