Email has become indispensible in business and everyday communication, while online transactions have become all pervasive making e-commerce the new frontier in local, regional and global business.
News of the ICT bill currently in parliament is therefore most welcome. When the ICT bill comes to pass, it will help to establish the trust and the predictability needed by you and I, whether on email, social networks such as Facebook, or business.
It is ironic that despite the pervasiveness of electronic transactions epitomised by the global embrace of email, it is doubtful they may legally hold up without explicit legislation locally. This inevitably undermines trust and the predictability needed by parties doing business online.
Predictability in the law requires legislation that clearly and unambiguously states that any transactions, including those effected online, are binding and satisfy legal requirements.
This example of electronic signature may illustrate.
By definition, a signature is any symbol used or adopted by a party with an intention to authenticate some writing. The key requirement is the presence of a “symbol” together with the party’s “intention.”
The symbols may include the usually complicated and illegible scribbling commonly used by many in transactions, including names on telegrams, telexes, typewritten names on some document and even names on letterhead. Faxed signatures have also been assumed to constitute effective signatures. Note that these forms of media are usually recognized in law worldwide as authentic.
This means that any symbol or code on an electronic record that is intended as a signature should also meet the requirement of intent. This should include a name typed at the end of an e-mail which may qualify as a signature, so long as it was created with the requisite intent.
The only concern is that without legislation the signature on that email or electronic transaction may be viewed as unenforceable in law, and therefore may not meet with a party’s trust and therefore the required predictability in subsequent transactions.
The EAC Task Force has made a series of Recommendations to EAC Partner States aimed at reforming national laws to facilitate electronic commerce, the use of data security mechanisms, and to deter conduct designed to undermine the confidentiality, integrity and availability of information and communication technologies. This includes protecting consumers in an online environment, and to protect individual privacy.
The Cyberlaw Framework was endorsed by the EAC Council of Ministers in November 2010. The Task Force Recommendations in the Framework are designed to harmonise the law reform process between the EAC Partner States, as well as reflecting international best practice.
The five Partner States are at different stages of implementation and developing their domestic cyberlaws. Some of the Partner States have already legislated some of the cyberlaws, covering electronic transactions, electronic signatures and authentication, data protection and privacy, consumer protection, and computer crime.
All the EAC Partner States are headed in this direction, which will go a long way in enabling and promoting the regional public policy goal of unencumbered e-commerce.
Mwaura is an author and freelance journalist