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Presentation summarizing UN Economic Commission for Africa (UN ECA) sponsored project to develop legal framework for E-Commerce for the Economic Community of West African States (ECOWAS). Delivered in Ouagadougou, 2006.
Economic Community Of West African States The Economic Commission for Africa
Legal Framework for E-Commerce in
19 December, 2006
Attorney and Consultant
Counsel Advisory Group/EMC Matrix
ECOWAS E-Commerce Project
• Develop a harmonized legal framework for e-
commerce at the sub-regional level
• Formulate policies to promote E-commerce
as facilitator and driver of regional economic
• Desk research to identify global best practices
• Beginning in September 2004, meetings with
ICT policy makers from ECOWAS
(Secretariat and ICT Task Force), UEMOA,
Niger, Ghana, and Nigeria to conduct the
• Analysis and assessment write-up
Findings & Recommendations
• No appreciable e-commerce policy or legislation in
ECOWAS, UEMOA or member states
• Complete greenfield opportunity to develop
harmonized e-commerce framework
• Capacity building necessary for policymakers
• Need for an inclusive policy and legislative
Findings & Recommendations (cont.)
• States and REC need to address infrastructure and platform
• Core E-Commerce laws to be developed with REC-wide
needs in mind
• Need to tackle corollary legal issues (consumer protection,
data and network security, IPR, etc.)
• Enabling environment critical; REC best suited to provide
• Private sector leadership necessary to spur e-commerce
• Enabling environment for E-government and E-commerce
Findings & Recommendations (cont.)
• Discreet, evolutionary approach unless sufficient resources to
successfully implement a “big bang approach” are available
• Initial phase with substantive focus on creating equivalence
between traditional and electronic signatures and contracts
• Follow-up phase addressing cyber-crime, data and network
security and protection, judicial, legal and law enforcement
• Tertiary phase addressing e-payment regulation, online
consumer protection, implementing awareness campaign
• Address corollary issues (electronic records, evidence, etc) on
a rolling basis
• Infrastructure and access
– Network quality and reach
– Affordable access to network
– Affordable access to devices (computers, mobiles, point
of sales units)
• Electronic payment systems
• Enabling environment - legal and regulatory
• Beyond scope of project, but crucial factor: No e-
commerce without e-payment
• Monetary Union (Eco launch postponed from 2005)
• Opportunity to utilize and enhance existing intra-
regional mechanisms such as WAUA, but will
require political will for further reform
• Significant private sector progress since report
written in deploying electronic payment networks
Does E-Commerce bring new
legal challenges ?
• Mere application of regular commercial principles to online
– Courts capable of applying existing principles to applications of new
technology once it is explained
• Unique 21st century business form that requires legislation?
• Reality lies somewhere between:
– Task is to provide sufficient certainty for real issues (whether
immediate or potential) raised by e-commerce within resource and
– Litigation can be more expensive option to society than legislation
for establishing ground rules
E-Commerce Law Challenge
• Evolutionary but forward-looking enabling
policies to generate market confidence;
– Inclusive - with significant user input
– Flexible, compatible with international practice
What does E-Commerce law
• E-transaction? • Trademark Law ?
• E-signature ? • Copyright Law ?
• Authentication & • Patent Law ?
Security ? • Database protection ?
• Cyber-crime ? • Domain name law ?
• Online consumer • Competition law?
• Online Privacy ?
• Data protection ?
What legal issues are at the core
• Electronic contracting
• Assent, formation, termination
• Click-on contracts and problems of contracts of adhesion
• In absence of valid contractual provisions, do default laws make sense in
– Place of business (ccTLD where applicable, address listed on web site,
location of servers, location of office(s) where applicable,
– Significant contacts/Nexus (where buyer seeks out seller via web)
What legal issues are at the core
of E-commerce? (cont.)
– Electronic records - data preservation
– Statute of frauds issues
Approaches to tackling legal
• Omnibus internet/ICT law:
– Big Bang approach, well-suited to raising awareness and interest;
– Exhaustive, resource and time intensive;
– Lumps disparate areas of law together unnecessarily;
– Sometimes prematurely addresses issues.
• Discrete, tailored approach:
– Flexible, gives room to address real rather than imagined
– Can be perceived as piecemeal.
Narrowing the scope of e-
• Although e-commerce legislation should be placed in the
context of a legal framework revised to reflect the networked
economy, it should not be used to address lacuna in off-line
• With resource constraints and lack of wide-spread use,
sensible to initially restrict scope of legislation to fairly non-
controversial areas, expanding according to demand with
• Legislative efforts shouldn’t crowd out private law
(contractual) solutions where volume of transaction and
sophistication of parties justifies that approach.
Defining legislative scope
• Divide into rough categories of core and
• Core issues:
• Related issues
– Laws Protecting Parties, Transactions, Systems and Data
– Create equivalency between paper and electronic
documents (in private and public laws).
– Create equivalency between electronic and
ordinary signature as to effect in determining
• Laws Protecting Parties, Transactions, Systems and Data
– These are laws that seek to create confidence among parties engaging
in electronic transactions by addressing the rights and interests in the
underlying exchange of goods and services;
– Include cyber-crime laws, intellectual property laws (expanded to
include database protection and domain name law), privacy
frameworks and other enabling laws such as consumer protection.
Related issues (cont.)
• Consumer protection
• Fraud-prevention -(offline equivalents and uniquely online -
• Malware - viruses, worms, etc.
• Online privacy
• Intellectual Property
• Database protection
• Data protection
Underlying Principles for
• Inclusive - Stakeholder input
• Technology neutral
• Flexible, compatible with international
• UNCITRAL model E-Commerce law (1996)
• UNCITRAL model E-signature law (2001)
• UNCITRAL Electronic contracting preliminary draft
• National Conference of Commissioners on Uniform State
Laws(NCCUSL) Uniform Electronic Transaction Act (1999)
• EU Electronic Signature Directive (1999)
• US E-Sign Act (2000)
UNCITRAL Model E-Commerce Law
• Establishes rules and norms that validate and
recognize contracts formed through
• Sets default rules for contract formation and
governing electronic contracts
• Pre-emptive (developed ahead of real,
• Global leaders in e-commerce have
implemented laws that diverge in important
Transactions Act (1999)
• Formally validates transactions arising out of
any electronic communication between
• Accord electronic documents and signatures
the same legal effect as written documents
and handwritten signatures
EU Electronic Signature Directive (1999)
• Prohibits discrimination against an e-
signature solely on the basis of its electronic
• Establishes that as long as an e-signature
meets a set of specific requirements, it is
equally valid with a handwritten signature.
US E-Sign Act (2000)
• Most recently enacted e-commerce legislation by major trade
• Created to pre-empt non-uniform implementation in state
legislation of the Uniform Electronic Transactions Act;
• Core thrust is that an electronic transaction may not be
denied legal effect just because it was created electronically or
was consummated by an e-signature.
US E-Sign Act (Cont.)
• US E-Sign Act applies to two fundamental e-commerce
– The electronic records that comprise the transaction
– The e-signature that consummates it.
• Act only applies where the parties have agreed to conduct
business electronically or to accept an e-signature.
UNCITRAL Model E-Signature Law (2001)
• Intended to build upon the principles of the Model Law on
E-Commerce of 1996.
• Extends the provisions of article 7 of the Model Law on E-
Commerce in order to promote reliance on electronic
• Goes beyond the basic principle that signatures should not
be denied effect simply because they are electronic.
• Instead, in Article 6, its main operative provision, prescribes
circumstances under which a legal requirement of a signature
for commercial transactions would be met by an electronic
Adoption of E-Commerce & Related Laws
• Mauritius, passed an Electronic Transactions Act in
2000, closely modeled after the UNCITRAL Model
E-Commerce law of 1996.
• In 2000, Tunisia adopted the Electronic Exchanges
and Electronic Commerce Bill covering the use of
electronic contracts, signatures and establishing a
certification authority and process.
• Likewise, Cape Verde passed an act in 2000
covering the use of e-contracts, signatures and the
admissibility of electronic evidence in courts.
Adoption of E-Commerce & Related Laws
in Africa (cont.)
• Also, in 2002 South Africa passed its Electronic
Communications and Transactions Act, an omnibus
act that covered e-commerce in addition to other
ICT related issues.
• Finally, Egypt adopted an E-Signature Law in 2004.
• In addition, at least one REC, SADC, has adopted a
model e-commerce law as a guide for its member
Broader legislative framework
• Adapting national laws to reflect e-commerce
– Inventory necessary to capture practices that adversely affect e-commerce:
• Paper-bias - Stamp duties, etc.;
• Importation rules (particularly for intangible goods/services);
• Currency exchange controls;
• Evidentiary standards, admissibility.
• Enacting ancillary ICT or internet related legislation
• ECOWAS states have a strong opportunity to
improve economic efficiency and competitiveness
by implementing the electronic delivery of services –
both in commerce and government
• This requires an enabling environment including
laws concerning core and secondary e-commerce
issues as well as ancillary issues
• Special efforts must be made to meaningfully
include the private sector (particularly merchants,
the legal profession, and the financial services and
IT industries) and civil society in the policy and
legislative formulation process
• Governments must go beyond creating laws by
actively utilizing electronic delivery platforms for
both its commercial interactions with business and
fundamentally for the delivery of government
services through e-government
• Many of the issues relating to e-commerce – from
data security, privacy, cyber--crime to e-payment
solutions and electronic records – are equally
relevant for e-government
• Finally, efforts should be made to identify and
facilitate the private sector development of e-
commerce projects with high impact potential in the