ELECTRONIC TRANSACTIONS ORDINANCE, 2002 - 2

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E-COMMERCE IT430

Lesson 42

ELECTRONIC TRANSACTIONS ORDINANCE, 2002 (ETO) (CONTINUED....)

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;

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 academics 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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