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ELECTRONIC COMMUNICATION AND COMMERCE
Use of Electronic Communication (EC) in the conduct of business and commerce has brought about great changes and challenges. Electronic Data Exchange (EDI) has revolutionised the whole system of business transactions. EDI has been defined as "the computer to computer transmission of business data in a standard format" ( The United Nations Trade Interchange Directory (UNTDID) , TRADE/W.P.4/R 721). Art. 2(b) of United Nations Commission on International Trade Laws (UNCITRAL) Model Law on Electronic Commerce defines EDI as : " The electronic transfer from computer to computer of information using an agreed standard to structure the information". It is a means of communication which replaces paper with structured electronic messages. (Encyclopedia of Information Technology, p.5009) It is said that it would be perhaps uneconomical to set up exclusive EDI links with each of the trading partners. The common way for business to communicate using EDI is through a Value Added Network (VAN) Service so that the sender routes the message to the recipient through the network rather than by a direct line between the sender and receiver computers.
However, EDI is more secure than simple E-mail. It is said that " its security is obtained through such matters as the technical procedures used, the protocols for message formats, data storage logs and acknowledgement of messages and confirmation of their contents". It is obvious for lawyers that these special features of EDI have considerable legal significance in determining the formation of contracts , identity of sender and receiver , receipt of communications etc.
Boss and Ritter observe :
" In International Trade , EDI introduces changes fascilitating the of a global economy. ..... Geographical distances , time requirements and language barriers fade into the background as national barriers become transparent and a borderless world emerges."
But, is this new electronic angel better or atleast as good as the known devil of paper-based communication? As Bajaj and Nag observe :
"The current legal practice has paper documents and signatures affixed there on as foundation. Electronic documents and messages, without the familiar signatures and marks, has changed the scene.
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However, trade still wants to be assured that the electronic world is safe. The EC system must, therefore, offer at least the same level of reliability as that which obtains in the paper world, not-withstanding the significant differences between the concept embodied in electronic messages and paper documents". ( Kamlesh K.Bajaj and Debjam Nag, E-Commerce ; The Cutting Edge of Business ( New Delhi, 1999 p.259)
But, then EDI has certain advantages over paper-based communications Walden and savage point out :
"Paper transfers can cause business hold-ups, with documentation often moving more slowly than the goods. In International Trade the absence of the right documentation can cause delays at the port of entry and expose the goods to the risk of deterioration and damage and may account for high demorage costs. Within a sophisticated business environment the more complex the production process the more paper is needed. Such communications can take time where the relationship is a continuing one....." (J.Walden and N.Savage, The Legal problems of Paperless Transacions(1989) BL, P.102).
Paper-based documents have three basic funcions, which would be required in any substiute system like EDI. They are :
1. Infromation Function
2. Evidential Function
3. Symbolic Function
Communication and dissemination of information or "news" is the least problematical of the three functions. In the event of a dispute, the other two functions have great legal significance and it is here that EDI appears to some as suspect. As Walden states, " a disadvantage of electronic messaging system is their fleeting nature, it can be difficult to produce an acceptable record of what has occured between trading parties in the event of a dispute". ( Van Walden " EDI and Law", in Edwards, Savage and Walden eds. Information Technology and the Law, 2nd Edition (1990), p.231.
The all important question is the weight and evidencary value that a court would attach to a document as against electronic record, with regard to identity, geniuneness and authenticity. The UNCITRAL report on the legal value of electronic records says that States were aware of the need for building safeguards and security procedures. The report stated :
" Almost all countries that replied to the questionaire appeared to have legal rules which were at least adequate to permit the use of computer evidence and to permit the court to make an evaluation necessary to determine the greater weight given to data" (UNCITRAL, A/C N 9/265)
The symbolic function of paper documents mainly consists of the importance that law attributes to the physical possession of a documents like the Bill of Lading or Bill of Exchange. For instance the transfer of a bill of lading represents the legal transfer of title to goods. Though attempts at creating electronic alternatives for such "negotiable instruments" are being presently explored, such instruments cannot yet be completely replicated through EDI.
It is not that the paper documents are totally free of legal problems relating to geniuneness etc. It is said :
" it is well known that frauds do take place in the traditional paper based commercial transactions, signatures can be forged, paper documents can be tampered with, and even the most secure marks, impressions , embleams and seals can be forged." ( Kamlesh k BaJAJ and Debjani Nag, Op.Cit., p.259)
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Benjamin Wright highlighted the problems associated with a paper-document : There is no standard method for signing in ink : signatures could anyway be strange, nondecipherable scribbles, with different signatures for every transaction. Moreover, signatures are seldom compared against specimens for authenticity. We often accept signatures on face value and without question though they may be forgoed. Forentsic science is not yet 100% fail-proof. The originator of a document may repudiate his handwriting or signature and discown a transaction. So also, the receiver may raise myriad objectives. Every page of a document may not be signed, or may have been altered after signature. ( Benjamin Wright, The law of Electronci Commerce(1991) p.101)
( But, then , " The world is comfortable with these problems since they have been there far as long as we have been trading " because these problems "are known, and trade as well as the legal community knows, how to deal with these problems " ; ( Ibid)
EDI AND LEGAL SAFEGUARDS
Necessity is the mother of law Mankind has learnt to develop new rules of law as and when man has put his surroundings or thing to new uses. Air Law and Space Law developed from the redimentary stage of law of tresspass and nuisance when man invented a balloon or an air craft or a spac ecraft. Similarly, the modern complex law of the sea was developed when he has learnt to put sea and its resources to new uses. As Nani Palkhiwala once said : " Lawyers are resistant to change and particularly to change for the better". The initial resistance or mental blocks or reservations regarding new technologies and new legal principles will crumble because of the sheer compulsions of modern requirements. As Benjamin Wright puts it emphatically, " the attitude that technology deserves suspicion" should be rejected and " if implemented intelligently, electronic communication can confidently be used for legal transactions ." (Benjamin Wright, ibid. )
Hence there was a felt need for building security measures for EDI with regard to communications :
1. Having Contractual significance ( eg. Bill of Lading, Contract of insurance, warranty etc)
2. Effecting transfer of ownership etc ( Title deeds etc)
3. Required by law to be in writing.
To meet the above requirements various attempts have been made to safeguard EDI as various levels.
1. Network Provider :
As has been pointed already, EDI is normally carried out through a network provider. The resposibilities of the provider have been identified as
a. Conveyance of the message in the correct format and protocol;
b. Safeguarding against the corruption of message
c. Ensuring that the message is conveyed to the addresses;
d. Pressuring the confidentiality and security of the message.
As the network provider is basically providing services, his primary duty is to exercize due care and caution.
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2. Interchange Agreements :
The parties using EDI to enter into contractual relations may enter into interchange agreements to govern their relationship, mainly covering structure for using EDI. This may consist of complying with VAN providers user Handbook, protocol for message, need for acknowledgement of receiver of confirmation of contents, The International Chamber of commerce has brought out uniform Rules of Conduct for the Interchange of Trade Data by Teletransmission (UNCID Rules) and the EC has also adopted a Model Interchange Agreement ( 94/820/EC/OJL 338/98-28 December 1994)
EDI AND LEGAL FORMALITIES
1. DOCUMENT :
The legal formality that certain transaction must be reduced to "writing " can be meet by EDI. But, then it depends on how " writing" is defined. If "writing" means modes of representing or reproducing words in a visible form (Schedule I of the English interpretation Act of 1978)
EDI may not satisfy the test but if "writing" means that the transaction should be evidenced in written words, than undertaken in writing, then a hard copy of EDI may satisfy the condition.
2. SIGNATURE :
In law, signature performs the following functions :
a. Identifies the writer
b. Authenticates the contents
c. Constitutes proof of signatory responsibility for correctness and completeness of contents.
All these functions can be carried out in EDI by way of "digital signatures" achieved through cryptography. For this purpose, three numbers can be used : one number forms the senders `private key' which is used to encrypt his message; the other numbers may be used as " public keys" which are used to deciiffer the messages but cannot be used to encrypt them. The use of Trusted Third Parties (TTP's) may be used for non-repudiation purposes , a function similar to that of notary public . It is also worth noting that the cryptography process is such that the message cannot be altered once the signature has been added to it, even by the receiver.
FORMATION OF CONTRACT THROUGH EDI
As pointed out at the outset UNCITRAL Model Law on Electronic Commerce adopted by the General Assembly in 1996 is one example of how law keeps pace with the changing needs of time. New uses and users require reformulation of existing laws and redefinition of definitions. New International Minimum Information Order ( NIMIO) to maintain and sustain uniform legal rules at global level regarding use of new information and Technologies has to be worked out keeping in view the present and projected demands of developed and developing motions. The Indian Information and Technology Bill of 1999 closely follows the UNCITRAL Model law in the light of similar legislation of other states and the special requirements of our country. The Model Law as well as the Indian I&T Bill have redefined terms like "document" "writing", "Signature" etc. to bring them in line with the compulsions of new technologies. They provide for recognition if electronic records and Art 5 of the Model Law declares : " Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message" Art.11 " dealing with " formation and validity of contracts" provides that " an offer and acceptance of an offer may be expressed by means of data messages" Rules regarding recognition of parties. (Art.12) , attribution of Data Messages (Art. 13) , Acknowledgement of Receipt(Art. 14) time and place of dispatch and receipt of data messages (Art. 15) have been evolved keeping in view the demands of the new technology.
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