Electronic Commerce Bill, 2000 [ Seanad ] : Committee Stage (Resumed) and Remaining Stages.

Debate resumed on amendment No. 29:
In page 17, subsection (1)(a), to delete lines 45 to 47, and substitute the following:
"(ii)on the sole ground that it is not in its original form,".
–(Deputy Yates).

On reflection, I feel that in this instance it would be wiser to use the original provision laid out in the Bill. Under the rules of evidence written words would never be excluded simply on the ground that they are written on paper. The approach of section 22 is similar in that electronic communications would not be inadmissible as evidence on the sole grounds that they are in electronic form. Electronic communications and information will, however, still continue to be subject to all the usual exclusionary rules of evidence, including the "best evidence" rule which serves to exclude information which is not regarded as relevant or reliable by the courts.

The essence of the rule is that evidence presented to the court should be the best evidence available of the matter under consideration. This common-law rule requires the parties seeking to rely on the contents of a document to adduce primary evidence of those contents, that is, the original document in question. The contents of a document may be proved by secondary evidence if the original has been destroyed or cannot be found after a search.

The essence of it is that the court has discretion on such matters. I just could not get at the kernel of Deputy Yates's amendment. I would be interested to hear what he has to say.

The provision as it stands refers to the "best evidence" rule of evidence. This is a common law rule requiring the parties seeking to rely on a document to adduce the original document in question. The rule does not apply if the original has been destroyed or is otherwise impossible to trace. The application of the rule to proving electronic dealings is awkward. Where a hard copy document has been scanned and transmitted, for instance, a technical certificate to goods in a sale of goods transaction, it requires the obtaining of the original hard copy. Where a document was originally generated and transmitted in electronic form, identifying the original is difficult and pointless. If a court has no doubts as to the reliability of a copy, be it in an electronic version or of a document, the "best evidence" rule creates a pointless exercise. That is why the rule was abolished in criminal law by section 30 of the Criminal Evidence Act, 1992. Under that section, a copy of a document authenticated in such manner as the court may approve may be given in evidence.

Section 22 seems to enshrine the "best evidence" rule. If there is an original hard copy, one can rely on an electronic version only if one can satisfy the court that the electronic version of it was the best evidence one could reasonably be expected to obtain. The whole balance of this provision is against the use of electronic versions. They are the poor relation. My amendment instead prevents a court refusing to admit an electronic version "on the sole ground that it is not in its original form". If the court has other grounds for refusing to admit an electronic version, for instance because some doubt has been raised as its accuracy or authenticity, then the court may require production of the original.

I am told that in the criminal law what I am proposing is now practice and that this allows the court to take a common-sense view of it. My proposal is pro-electronic commerce.

I know that. However, section 16(1) of the Bill as amended in the Seanad states:

If by law or otherwise a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from the information not being presented or retained in its original form) or permitted to present or retain information in its original form, then, subject to subsection (2), the information may be presented or retained, as the case may be, in electronic form, whether as an electronic communication or otherwise.

This section provides that where there is a requirement to present or retain information in its original form, that original form information can be presented or retained in electronic form. This section is intended to apply to situations where there is a requirement for information to be presented or retained in its original form and is to be distinguished from situations where there is a requirement to retain or produce a paper document. That is dealt with in section 17 which sets out the minimum acceptable form requirement. I appreciate the point the Deputy is trying to put forward.

I was advised by a legal person. I will not press it strongly because time is against us.

The Deputy is seeking the utmost parity.

Amendment, by leave, withdrawn.

I move amendment No. 30:

In page 18, lines 8 to 10, to delete subsection (2).

Amendment agreed to.
Question proposed: "That section 22, as amended, stand part of the Bill."

It is not clear why the Minister is dropping subsection (2) when she accepted it in the Seanad.

That is the one Senator Costello spoke on.

Could the Minister clarify that?

I could. I do not have the documentation with me, but I remember it distinctly. We accepted that in good faith. Subsequently, we received a communication from the Department of Justice, Equality and Law Reform informing us that it directly contravened section 30 of the Criminal Evidence Act, 1992. I mentioned it before the break because I thought it was important to do so. I have to accept what the Department says in that regard because I do not know enough about that Bill.

I understand that at some stage the officials may have given the impression that this legislation would deal with hearsay in the context of admissibility of evidence in courts. Essentially the hearsay rule provides that out-of-court statements are not admissible. This is a real problem in the field of record keeping. It means that many records cannot be relied upon to prove facts recorded in them. For instance, if a call centre employee records on a computer that a particular customer ordered £1,000 worth of goods and later that must be proved because the customer denies ordering the goods, it is not permissible to rely on the computer record to prove the order. It is necessary for the employee to give oral testimony in court. That employee may, however, be untraceable by the time the proceedings take place or may simply not be able to recall one telephone call among many. With the expansion of electronic record keeping there are many other scenarios where the same problem arises. Ireland is the only common law country which has not tackled this problem. The Department intimated that when the draft heads of the Bill were published in January, the head in relation to admissibility of evidence "will also need to be expanded when interaction of the legislation with the hearsay rule is being considered in greater detail". Is there an explanation why it is not dealt with?

I do not know so I will be straightforward.

It was promised.

I think expansion was mentioned by the officials in terms of further legislation, but not for this Bill. I do not know, because I have not discussed the point with the officials. This Bill opens the door and provides the legal framework. It would fall to other Departments and other directives to pursue further avenues if necessary.

I understand what the Bill provides for. My question relates to the purchase of something over the Internet or through a call operator and the fact that an out of State court judgment cannot be given.

Because it cannot be received.

Yes. Can it or will it be dealt with in other legislation?

Bearing in mind the interlinking in the Bill, particularly between ourselves and the Department of Justice, Equality and Law Reform, I imagine it could be.

Question put and agreed to.

I move amendment No. 31:

In page 18, before section 23, to insert the following new section:

"23.–The Minister for Public Enterprise shall establish an Appeal Board, similar to the Small Claims Court, to provide a form of on-line and off-line arbitration for e-commerce disputes.".

The proposal is to establish an appeals board for on-line transactions in the same way that a small claims court operates for off-line arbitration of disputes. It has been suggested to me that there are a number of dispute resolutions which could be dealt with in the Bill which would avoid litigation and full court hearings. Perhaps the Minister will outline her attitude in this regard.

There are a number of initiatives already under way in relation to on-line arbitration in the context of business-business and business-consumer disputes. Work is well advanced on the establishment of a business-business dispute resolution system in association with interested parties and EU funding has been sought in relation to the project which would offer on-line arbitration and mediation services. We already have a number of initiatives in place in terms of business-consumer arbitration, including the European extra-judicial network and associated clearing houses. A pilot project to bring the small claims procedure on-line in respect of disputed consumer transactions in relation to goods or services is being considered by the Minister of State, Deputy Tom Kitt, and by the Minister for Justice, Equality and Law Reform under the information society action plan. The good intention in the Deputy's amendment is already being put into practice through a series of pilot projects – the Deputy would not have been aware of this – and when they have been monitored and evaluated they will be developed.

Amendment, by leave, withdrawn.

I move amendment No. 32:

In page 18, before section 23, to insert the following new section:

"23.–All provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically.".

The object of this amendment is to apply the defamation law on-line as well as off-line in the context of stories carried on the Internet, etc. I understand the Defamation Act, 1961, deals with this area and there are ancient non-statutory common law rules, but there is no case law in Ireland in relation to defamation principles on the Internet. There was a case, but apparently the defendant pleaded guilty and it did not get to court. The Department is relying on the English High Court decision in the Godfreyv. Demon Internet case of 26 March 1999. I would like an assurance from the Minister that the Attorney General is satisfied that defamation law applies equally to the Internet.

It is very interesting because when we examined this again this morning, and read the explanation, I immediately said "there is no precedent in Irish law". There was a court case, but the defendant pleaded guilty. There is a precedent in the UK – the decision of the English High Court of 26 March 1999 in Godfreyv. Demon Internet – but we just cannot take such precedent. It is likely that Irish courts will hold that defamation principles apply equally to the Internet. We will have to wait until there is an Irish precedent. In the UK case the judge said the defendant Internet service provider was analogous to a bookseller or publishers who sold defamatory materials. The judge said that publication of defamatory matter will occur each time a person accesses it on the Internet. I am inclined to take the point of view of Deputies Yates and Coveney in this matter. We do not have Irish case law, and we will see if the English precedent becomes the precedent here. I will accept the amendment.

The laws on defamation as referred to here would relate to electronic communications within the State. What can be done about defamatory material which emanates from outside the State, for example, within the EU?

I will return to the Deputy on this matter as we did not discuss that issue. It is important in the context of the Bill but an amendment in this regard has not been tabled. I will give the information in writing to the Deputy tomorrow.

Amendment agreed to.

I move amendment No. 33:

In page 18, before section 23, to insert the following new section:

"23.–The Minister for Public Enterprise shall authorise and mandate the Office of the Director of Telecommunication Regulation to introduce a scheme for the full unbundling of the local loop in the telecommunications network, to allow licensed telecommunications operators to provide the full range of advanced telecommunications services.".

I will withdraw the amendment. I flew it as a kite because I feel very strongly that the final aspect of liberalisation and regulation is the unbundling of the local loop. I knew the amendment was out of order when I tabled it, but it was intended to give somebody in the Department a kick. I am delighted, notwithstanding the difficulties for Eircom, that this has been agreed to. Perhaps the Minister might tell us the timetable for the proposal.

I knew when I read the amendment that that was its purpose. Europe went for bit-stream as a halfway house, but we think it is neither one thing nor the other and we are going for a full unbundling of the local loop, which has been an issue for about two years. If Brendan Touhy had his way we would have unbundled two years ago. There will be much angst in Eircom, but it is full of angst anyway. We hope to bring forward the necessary legislation – the Telecommunications Regulation (Amendment) Bill – in the autumn, which will include Etain Doyle's recommendations regarding personnel and the issue of accountability.

Amendment, by leave, withdrawn.
Sections 23 to 28, inclusive, agreed to.

We now proceed to amendment No. 34. Amendment No. 35 is related and amendment No. 36 is an alternative to amendment No. 35. Is it agreed that amendments Nos. 34 to 36, inclusive, be discussed together? Agreed.

I move amendment No. 34:

In page 21, subsection (1), line 34, to delete "shall" and substitute "may".

Section 29 deals with the liability of certification service providers. I am seeking to alter it in such a way that there would not be strict liability, that certification service providers would be liable only where negligent. I was informed that it would be unjust to make them liable in all circumstances. As the Minister's amendment, which reads, "unless the certification service provider proves that he, she or it has not acted negligently", seems to meet the point I am happy to withdraw amendments Nos. 34 and 36.

I thank the Deputy. In the debate in the Seanad an important inconsistency between the Bill as published and the electronic signature directive was highlighted. We are inserting the wording used in the directive.

Amendment, by leave, withdrawn.

I move amendment No. 35:

In page 21, subsection (1), line 35, after "certificate" to insert "unless the certification service provider proves that he, she or it has not acted negligently".

Amendment agreed to.
Amendment No. 36 not moved.
Section 29, as amended, agreed to.

We now proceed to amendment No. 37. Amendments Nos. 38 and 40 are related. Is it agreed that amendments Nos. 37, 38 and 40 be discussed together? Agreed.

I move amendment No. 37:

In page 22, before section 30, but in Part 4, to insert the following new section:

"30.–(1)A person or body who, whether within or without the State, registers or uses any domain name which relates to or identifies another person or body ordinarily resident or carrying on business as the case may be within the State, otherwise than with the consent of the second-mentioned person or body or in good faith and with reasonable cause, shall be liable in damages to the second-mentioned person or body.

(2)The High Court and the Circuit Court (exercising its jurisdiction through the judge for the circuit where the defendant resides or carries on business, or, if outside the State, through any circuit at the election of the plaintiff) shall exercise jurisdiction under this section.".

The amendment seeks to provide a remedy for cybersquatting, bertieahern.com would be one such example. The section, as it stands, is deficient as it provides for criminal remedies and applies to dot ie addresses only. The amendment is self-explanatory and I await the Minister's response. Cybersquatting is a source of concern for many. We believe we have come up with a remedy.

I support the amendment. Amendment No. 40 in my name approaches the issue from a different direction. It seeks to establish a public body to resolve such disputes where a person claims "ownership" of an Internet name. We are dealing here with chancers who register a dot com or dot ie address in the hope that they will be bought off and thus end up with a windfall. There should be no incentives to engage in cybersquatting which should be made illegal.

The Department of the Taoiseach has appealed to the World Intellectual Property Organisation, to which everyone can have recourse, on the issue of bertieahern.com.

Section 30, as it stands, provides powers for the Minister of the day to regulate domain name registration in Ireland and, if necessary, these regulations would be used to tackle the issue of cybersquatting on dot ie addresses, in respect of which cybersquatting has not been an issue because they can be registered only by persons or companies associated with them. Other domain registration addresses such as dot com are not controlled from within the State. This is a global issue and organisations such as Internet Corporation for Assigned Names and Numbers is examining methods to deal with the problem in a global context. It is interesting to note that in the first case of its kind in the State an Irish firm of solicitors succeeded in recovering rights to an associated dot com address registered by another Irish company.

As regards amendment No. 39, the Office of Attorney General has advised that the current limit for penalties for summary offences remains at £1,500. My Department does not have the power to change it. The possibility of revising it is being examined by the Office of the Attorney General which, in turn, will advise the Department of Justice, Equality and Law Reform.

As regards amendment No. 40, section 30 as currently worded provides powers for the Minister of the day to make regulations on the right of appeal and appeal processes in relation to domain name registration in Ireland. I propose to address the matter at that stage.

What powers are available under European law? Surely it provides some protection for citizens. Are there any aspects which can be transposed into Irish law?

The European Union has no control over the matter either. It is a global issue which cannot be controlled by fortress Europe.

Citizens remain vulnerable. Apart from recourse to the body to which the Department of the Taoiseach has appealed, the Minister is of the view that protection cannot be provided for citizens under the Bill.

While we have done some good work in providing protection for citizens under the Bill, domain registration addresses such as dot com are not controlled from within the State. They can be accessed worldwide.

Even where they are controlled from within the European Union.

I am informed that the European Union has no control over the matter. It is a global issue.

Even if the source is within the European Union.

Electronic signature legislation would not be the most suitable vehicle. Perhaps the matter should be looked at in the context of legislation dealing with trade marks.

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 22, subsection (1), line 22, after "made" to insert "for the purpose of easy comprehension, fairness, transparency, avoidance of deception, promotion of fair competition and public confidence".

Amendment agreed to.
Amendment No. 39 not moved.
Section 30, as amended, agreed to.
Amendment No. 40 not moved.
Schedule agreed to.
Title agreed to.

As it is now 4.20 p.m. I must put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Public Enterprise and not disposed of are hereby made to the Bill, that the Fourth Stage is hereby completed and that the Bill is hereby passed."

I thank the Minister for accepting a number of our amendments. She and her officials have been very co-operative. The issue of privacy is important. I did not call a vote because of time pressures. Perhaps the Minister will let me know the outcome of her correspondence with the Data Protection Commission. I also ask her to put pressure on the Department of Justice, Equality and Law Reform because it is very important when moving forward in this area that we also protect the rights of individuals.

I thank the Minister for the way she handled the Bill from the outset. There was consultation with the Opposition spokespersons. This is important legislation. It will help to open up a huge area where good progress can be made in terms of high salary job creation. I wish the Minister well with the legislation. I also wish the other Minister well in terms of broadening the employment base.

I thank the Opposition spokespersons who have provided a very important input into the Bill and for the open and free way in which we all engaged in deliberating on it. I also thank the officials for their work. It is a good day for technology, the information age, and especially for business that we passed this Bill in a consensual manner. The President proposes to sign the Bill electronically.

Question put and agreed to.

The Bill, which is considered by virtue of Article 20.2.2º of the Constitution as a Bill initiated in Dáil Éireann, will now be sent to the Seanad.