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Lesson#42
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ELECTRONIC TRANSACTIONS ORDINANCE 2002-ETO-1
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An originator can attach a condition with the electronic
communication that it would be deemed to be
sent only if the addressee acknowledges its receipt. An
originator can also specify the mode in which
the acknowledgment would be acceptable. Then only such mode can
be used for sending the
acknowledgment.
Section 14 is the relevant provision in this behalf:
“14. Unless otherwise agreed where the originator has stated
that the electronic communication
is conditional on receipt of acknowledgment, the electronic
communication is treated as
though it has never been sent, until the acknowledgment is
received.
Where the originator has not agreed with the addressee that the
acknowledgment be given in a
particular form or by a particular method, an acknowledgment may
be given by:
any communication, automated or otherwise, by the addressee ; or
any conduct of the addressee, sufficient to indicate to the
originator that the
electronic communication is received.”
Section 15 of the ETO provides guideline as regards the place and time of dispatch and receipt of an
electronic communication in the following terms:
“15. Unless otherwise agreed between the originator and the
addressee, the dispatch of an
electronic communication occurs when it enters an information
system outside the control of
the originator.
Unless otherwise agreed between the originator and the
addressee, or unless proved otherwise,
the time of receipt of an electronic communication is determined
as follows:
If the addressee has designated an information system for the
purpose of receiving the
electronic communication, receipt occurs:
At the time when the electronic communication enters the
designated information system;
or
If the electronic communication is sent to an information system
of the addressee that is
not the designated information system, at the time when the
electronic communication is
retrieved by the addressee;
If the addressee has not designated an information system,
receipt occurs when the
electronic communication enters an information system of the
addressee.
Sub-section (2) applies notwithstanding that the place where the
information system is located
may be different from the place where the electronic
communication is deemed to be received
under subsection (4).
Unless otherwise agreed between the originator and the
addressee, an electronic
communication is deemed to be dispatched at the place where
originator ordinarily resides or
has his place of business, and is deemed to be received at the
place where the addressee
ordinarily resides or has his place of business.
For the purpose of this section:
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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 or,
where there is no underlying transaction, the principal place of
business;
If the originator or the addressee does not have a place of
business, reference is to be
made to the usual place of residence ; and
“Usual place of residence” in relation to a body corporate,
means the place where it is
incorporated or otherwise legally constituted.”
Note that sub-sections 1-3 of the above section deal with the
time of dispatch and receipt of an electronic
communication. In general terms, an electronic communication is
deemed to have been sent by an
originator at the time it enters the information system beyond
the control of the originator. On the other
hand, it is deemed to be received by the addressee at the time
it enters his information system or his
designated/specified information system. Note that the
determination of time of dispatch and receipt of the
electronic communication is crucial with regard to the
calculation of limitation period in which a legal action
has to be taken by a party.
Remember that under the law a legal action is ordinarily
initiated within a specified time period, beyond
which such an action is not maintainable. This is called the law
of limitation. Main idea behind the law of
limitation is that a party should be vigilant/alert in bringing
its claim in a court of law. Sub-section 4
provides the guideline as to how the place of dispatch and
receipt of an electronic communication can be
determined. Basically, it describes the place of dispatch and
receipt of an electronic communication to be
where the originator or the addressee ordinarily reside or have
their respective businesses.
Note that the determination of place of dispatch and receipt of
electronic communication is important to
fix the territorial jurisdiction. Territorial jurisdiction
refers to the legal competence or right of a court of a
particular area/territory to entertain and decide a case.
Section 16 states that
no one shall have a legal right to insist upon an appropriate authority to
create, issue,
accept or retain a document in electronic form. However, where
an appropriate authority under a law issues,
creates, retains, accepts or provides any mechanism for
payment/transaction, it, on its own, can decide that
a document would be in electronic form for the above purposes.
Also, it would be entitled to specify the
manner/format for any such documents, procedures, the type of
electronic signatures etc. This provision is
reproduced here for a reference:
“16. Nothing contained hereinbefore shall confer a right upon
any person that any appropriate
authority should accept issue, create, retain, preserve any
document in electronic form or effect
monetary transaction in electronic form.
Any appropriate authority pursuant to any law or procedure:
Accepts the filing of documents, or requires that documents be
created or retained;
Issues any permit, certificate, license or approval; or
Provides for the method and manner of payment, procurement or
transaction
May notwithstanding anything contained to the contrary in such
law or procedure:
Accept the filing of such documents, or creation or retention of
such documents in the
form of electronic documents;
Issue such permits, certificate, licence or approval in the form
of electronic document; or
Make such payment, procurement or transaction in electronic
form.
In any case where an appropriate authority decides to perform
any of the functions in clause
(1) (i), (ii) and (iii) of sub-section (2) may specify:
The manner and format in which such electronic documents shall
be filed, created,
retained or issued;
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When such electronic document has to be signed, the type of
electronic signature,
advanced electronic signature or a security procedure required;
The manner and format in which such signature shall be affixed
to the electronic
document, and the identity of or criteria that shall be met by
any certification service
provider used by the person filing the document;
Control process and procedures as appropriate to ensure adequate
integrity, security and
confidentiality of electronic documents, procurement,
transactions or payments; and
any other required attributes for electronic documents or
payments that are currently
specified for corresponding paper documents.”
Note that the above provision provides the legal basis for
e-government.
Under Section 17 a
certification service provider, which is not accredited, can still be engaged in
providing
certification services. Note that a certification service
provider is the same as a certification authority you are
familiar with. Section 18 provides that the Federal Government
shall establish a Certification Council,
which is a high level body comprising five members. The
qualifications of the members of the Council are
mentioned in Section 19. The Council shall have its own fund
under Section 20. The functions of the
Certification Council are described in Section 21. Mainly, the
council would grant, renew, suspend, revoke
any accreditation certificates to the certification service
providers, and would monitor compliance of
certification service providers with the provisions of the
ordinance. It would also be responsible for setting
up and maintaining a repository/database where information about
accreditation certificates and digital
certificates issued to the subscribers would be placed and
accessible by public at large. For quick reference
the relevant provisions are quoted below:
“17. Nothing in this Ordinance shall impede or in any way
restrict the rights of any certificate
service provider to engage in the business of providing
certification services without being
accredited.
No person shall hold himself out as an accredited certification
service provider unless he holds
a valid accreditation certificate issued under section 24 by the
Certification Council.”
“18. Within sixty days
of the promulgation of this Ordinance, the Federal Government shall,
by notification in the official Gazette, constitute a
Certification Council to be known as
Electronic Certification Accreditation Council.
The Certification Council shall be a body corporate with
perpetual succession and a common
seal, and shall by the said name sue or be sued.
The Certification Council shall comprise of five members, with
four members from the private
sector. One of the Members shall be designated as the chairman.”
“19. of the five members of the Certification Council:
One shall be telecommunications engineer with at least seven
years work experience, of which
at least one year is in the field of cryptography services;
Two shall be professional or s with at least seven years
work experience in the field of
information technology;
One shall have an administrative background with at least seven
years experience in a private or
public organization; and
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One member shall be an advocate with at least seven years
experience and adequate knowledge
of laws relating to information technology and
telecommunications.”
“20. the funds of the Certification Council shall comprise of:
Grants from the Federal Government;
Fee for grant and renewal of accreditation certificate; and
Fee, not exceeding ten Rupees, for every certificate deposited
in the repository; fines.”
“21. The Certification
Council shall perform such functions as are specified in this Ordinance
or may be prescribed.
Without prejudice to the generality of the foregoing subsection,
the Certification Council shall:
Grant and renew accreditation certificates to certification
service providers, their
cryptography services and security procedures;
Monitor and ensure compliance by accredited certification
service providers
with the terms of their accreditation and revoke or suspend
accreditation in the
manner and on the grounds as may be specified in regulations;
Monitor compliance of accredited certification service providers
with the
provisions of this Ordinance;
Establish and manage the repository;
Carry out research and studies in relation to cryptography
services and to obtain
public opinion in connection therewith;
Recognize or accredit foreign certification service providers;
Encourage uniformity of standards and practices;
Give advice to any person in relation to any matter covered
under this
Ordinance;
Make recommendations to an appropriate authority in relation to
the matters
covered under this Ordinance.”
For the creation/management of information repository, there is
Section 23 in the ETO
as follows:
“23. The Certification Council shall establish and manage a
repository for all accreditation
certificates, certificates issued by accredited certification
service providers and for such other
information as may be specified in regulations made by the
Certification Council.
The Certification Council shall take appropriate measures to
ensure the security of all
information contained in the repository.
All information contained in the repository shall be open to
public inspection.
Notice of suspension or revocation of any accreditation or of
certificate issued by an accredited
certification service provider, shall be posted in the
repository within the prescribed time.”
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