Debbie Fraser, Contributor
JAMAICA HAS begun to tackle the issues arising from the 'Digital Age'. A series of events, such as the phased liberalisation of telecommunications services, the provision of such services by several players and the increased reliance on technology by a number of professional, educational and financial services have led to more attention being given to this area.
By "digital age" I mean the means by which technology has facilitated communication by the speedy dissemination of information regardless of physical or nationalistic
boundaries.
The technological ability to convert data, sound, images (still and moving) into series of 1s and 0s has heralded the new digital age. We see this digitisation in practice in everyday products such as MP3s, CDs and DVDs, the download of sound and pictures over a personal computer, television, PDA or cellular phone.
LAW AND DIGITISATION
The ramifications of digitisation on our laws are numerous and far-reaching. To illustrate this point, I will use an example that comes quickly to mind that of electronic commerce (e-commerce).
An on-line contract for the sale of music involves various legal considerations:
The terms and conditions under which the contract was concluded whether they are found on the website; click-wrap licence;
Consumer protection;
Conclusion of the contract by the purchaser this involves looking at questions such as:
(a) where was the contract formed;
(b) when was it formed;
(c) what are the applicable terms and conditions;
(d) acceptance of the terms, whether by electronic signature which necessarily involves identification of the signer
Payment by way of credit card; electronic money;
The security of personal data along the communication path (from hackers/crackers);
(a) verification that the contents have not been changed along the way this may be done by encryption or other data encoding mechanisms;
(b) verification that the information originated from the purported source;
Security of information once it reaches to the vendor and the prevention of disclosure to unscrupulous persons;
Intellectual property rights;
OSP (on-line service provider) liability for unlawful content the various stages of liability where the provider is merely a link in the chain of communication or where it hosts the website with the unlawful material;
Whether OSPs can disclose information to law enforcement officials for purposes of crime detection/prevention;
The resolution of disputes that arise from on-line transaction which encompasses looking at the following issues:
(a) which country has jurisdiction over the matter;
(b) what laws will be applied;
(c) how to obtain the evidence and its admissibility in the court;
(d) costs of litigation;
(e) enforcing a judgment made against the other party who may be in another country.
This is an outline of some of the potential issues involved in a simple product sale from, say, Sony Records to a consumer. The issues are compounded when the parties are two major businesses involved in negotiations or where the product is one that is typically subject to much national regulation, such as the provision of financial services; gambling; pharmaceuticals and taxation.
LEGISLATIVE PROGRAMME
Various countries and regions have implemented legislative programmes to address the special concerns that arise by virtue of e-business or electronic communication. This typically takes the form of statutes, regulations, recommendations or legislative industry guidelines. The law has had to respond to the challenges of the information age in order to ensure that there is clarity in determining the respective obligations and responsibilities of the various players in this area and to seek to ensure that redress is available where the benefits of technology are being abused.
This is, however, a continuous process of "catch up" given the nature of the internet; increased networking (especially with the advent of home wireless networks which allow internet access in every room; and rapidly increasing technological capability). Consequently, there is a growing consensus and appreciation of global regulation or legislative models, for example, the Convention on Cybercrime; UNCITRAL Model law on E-Commerce and the WIPO Copyright Treaty.
Sometimes industries, individual businesses and consumers regulate themselves (self-regulation). An example is seen in computer rating and filtering software used by parents to rate and determine the viewing content of information seen by their children over the internet (Net Nanny; CYBERsitter; Cyber Patrol). Shoppers throughout Europe will soon see the introduction of new age ratings and symbols on computer and video games.
Unless the public feels confident that its rights will be protected in the Digital Age, we will not be able to maximise the benefits which can be achieved from information and communication technology. Although self-regulation has its role to play and should be encouraged, it is not sufficient. An adequate legislative framework is an important component to the development of any policy agenda or framework for this area.
The legislative programme should also seek to maximise the economic and social benefits which can be achieved from reliance on technology. Jamaica, for example, recently introduced the Interception of Communications Act which allows for the use of technology to intercept communications which may be a threat to our national security. Other areas which should be addressed in a legislative programme in order to take advantage of the benefits of technology are:
Education;
Health;
Other social services;
Although the usual focus is on e-business, there are certain other benefits which can be achieved in relation to social services. The programme should therefore seek to further provide the environment which will encourage investments (such as tax breaks or incentives) in these areas so that technology may be used as an engine for social improvement and social development to make social services more affordable and accessible.
While the legislative programme should be one which addresses the legal issues which arise over time, in order for it to be effective, it must also be able to respond quickly to the these issues.
The speed at which rights can be affected and the substantial losses which can be suffered in a relatively short period of time highlight the need for the programme to be supported by a framework which permits a speedy response.
If putting in place an Act which seeks to address an issue which rises as a result of information technology will take over six months, this will weaken the effectiveness of the legislative
programme.
DEVELOPMENTS IN OTHER COUNTRIES
It is without a doubt that the world is now a global shopping place. Small and medium sized businesses are now able to compete side by side in the virtual marketplace. Not only is this a benefit to the individual business but also to the country in which a supplier resides.
The European Union represents, to date, the most comprehensive regime that promotes e-commerce and consumer protection. There, we find:
the Electronic Commerce Directive;
the E-Signatures Directive;
the Distance Selling Directive;
Unfair Terms in Consumer Contracts' Directive;
Data Protection Directive, to name a few of the legislative measures that are employed.
Other countries have implemented some e-commerce-specific legislation which it is expected will be supplemented by adaptation of existing laws covering traditional areas of activity.
The United States has some federal laws dedicated to e-commerce as well as individual State legislation. The federal legislation include:
E-Signatures in Global and National Commerce Act
Consumer Protection Act Subchapter VI looks at electronic fund transfer
Children's On-line Privacy Protection Act
Gramm-Leach-Bliley Act financial institutions and data protection
Other initiatives include the Safe Harbour regime for data protection and the American Bar Association Guidelines.
Some Caribbean countries have also taken the initiative to address e-commerce, for example:
Barbados Electronic Transactions Act
Cayman Islands - Electronic Transaction Law
Bermuda The Electronic Transactions Act
JAMAICA
Jamaica is still in the infant stage of its legislative plan for e-commerce. While other countries have covered a lot of ground to address this area, we have just begun dealing with issues such as whether an electronic signature is recognised in our law. The government's mandate is to introduce legislation which will seek to regulate e-commerce over the internet.
The first step is to amend our laws to cater for the conclusion and enforceability of electronic contracts. To do this, we need to provide for, among other things, electronic documents and signatures. Consideration will then have to be given to consumer protection and legislation which will seek to protect contents and other rights holder.
Regrettably, the changes to accommodate e-commerce have been minor and largely exist as policies and recommendations. The most significant venture to date, is my firm's involvement with consultants hired by the Government for assisting with the preparation of a Bill to address electronic transactions. Such an Act is intended to cover the following in respect of electronic records:
communication of electronic records;
electronic signatures;
certification of e-signatures;
liability of intermediaries; and
the government's use of electronic records and signatures.
Passing of a Bill of this kind, in turn, causes other issues to rise to the fore; such as:
whether e-commerce activities should be handled by an independent regulatory body or by an arm of a government;
whether this initiative should be private sector versus public sector driven;
the standards to which Jamaican suppliers of internet products should subscribe;
establishing a complete regime for protection and privacy of personal data and consumer rights; and
passing legislation to tackle computer crimes such as hacking and distribution viruses.
Whilst the government's role in passing legislation will be determined by market forces, we must appreciate that this must be set against global
initiatives.
The first step has been taken that of recognising that a new age has begun and that the law needs to keep in step. The protection afforded to citizens of other countries should also be afforded to Jamaicans. Jamaica therefore has a long way to go. It may be that there has been little or no litigation in Jamaica arising from information technology issues largely because of a lack of awareness by the public, limited resources and limited access to information technology.
The internet levels the playing field between large suppliers and SMEs. The quality of a product is the key to effective competition. It also gives us an opportunity to focus on where we are, where we want to go and how we are to get there. We may have a lot of ground to cover but with the right framework, we will get there.
Speech given at the recent Regional Information and Communication Technologies Conference for Development at the Jamaica Pegasus.
