Electronic Commerce Bill, 2000: Committee Stage.
Sections 1 to 9, inclusive, agreed to.
SECTION 10.
I move amendment No. 1:
In page 10, subsection (1), line 10, to delete "the regulations" and substitute "regulations under section 3”.
The amendment seeks to clarify the position on regulations. The wording in the subsection which reads, "except to the extent that the regulations may from time to time prescribe", seems to have come out of the blue. Given that this refers to the regulations under section 3, my amendment seeks to substitute "the regulations" with "regulations under section 3” to make it clear we are not referring to a broader list prescribed under the legislation.
I am pleased to be back in the House to deal with these amendments. I am happy to accept the amendment because it is a refining of the regulations applicable under each section.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
SECTION 12.
I move amendment No. 2:
In page 11, subsection (5)(e), line 35, to delete “un-sworn” and substitute “unsworn”.
As a teacher, I am a stickler for grammatical points. This is merely a typographical error.
As a teacher I would have sworn that "un-sworn" was the correct English. However, it appears "unsworn" is the correct terminology. I am pleased to be corrected.
Amendment agreed to.
Section 12, as amended, agreed to.
Sections 13 to 17, inclusive, agreed to.
SECTION 18.
Government amendment No. 3:
In page 16, subsection (2), lines 10 and 11, to delete "of the contract" and substitute "of the offer".
This section provides that a contract should not be denied legal validity just because it was carried out by electronic means. It allows contracts to be agreed using electronic communication. While the term "acceptance of an offer" is used in the first line of subsection (2), "acceptance of the contract" is used subsequently in the subsection. This should also read "acceptance of an offer". As such, the concept of "acceptance of the contract" does not exist in contract law; "acceptance of the offer" exists.
Amendment agreed to.
I move amendment No. 4:
In page 16, subsection (2), line 12, after "communication" to insert "and, subject to any contrary provision contained therein, the contract shall be deemed to have been made where and when the said acceptance was received".
The purpose of the amendment is specifically to determine when a contract is a contract in terms of electronic communication. While the section indicates the means of electronic communication that will form the contract, it does not specify when and at what point of time it is a contract. Postal contracts are formed when the letter is posted as distinct from when it is received, but because electronic communication is virtually instantaneous it would appear to be more appropriate to provide that a contract is formed at the point of receipt of the communication, rather than at the point when acceptance is communicated.
I understand the Senator's concerns and we have considered the matter in my Department. The section provides that a contract should not be denied legal validity simply because it was carried out by electronic means. It is not intended to interfere with existing law or with the formation of contract, nor is it intended in the Bill to establish new rules of contract law.
I am sure the amendment was put down for good a reason. It appears to add certainty and finality to the moment when a contract is concluded, however, it would effectively create a rule for off-line contracts that does not exist. Given that the aim of the Bill is to create the functional equivalence between on-line and off-line contracts and the on-line and off-line world, creating such new rules would not be desirable. It could have the potential to be damaging or difficult for consumers.
The amendment raises the issue of time and place of dispatch and receipt of electronic communications. It is important, therefore, to have default rules in this regard. These are provided for in section 21. While I understand the Senator's concerns, the amendment would give an added edge to something when we are trying to provide functional equivalence between off-line and on-line business.
The other side of the case could be argued equally strongly.
A degree of certainty is important to give credibility to electronic contracts. This is a matter of huge debate in legal circles with regard to existing communications. If it is the Minister's legal recommendation that it would be best to leave the matter open I will accept it because the only function of the amendment is to assist in terms of giving credence to electronic communication as a viable and acceptable alternative method of forming contracts.
Amendment, by leave, withdrawn.
Section 18, as amended, agreed to.
SECTION 19.
I move amendment No. 5:
In page 16, subsection (1), line 13, to delete "contents" and substitute "sender".
Section 19(1) states: "The contents of an electronic communication shall be presumed to be that of the person or public body by whom it purports to have been sent,. . . ". There appears to be confusion here because the explanatory memorandum emphasises to whom it is to be attributable as distinct from the contents which are attributed. In view of this, the amendment emphasises the sender rather than the contents.
Amendment No. 6 is related to amendment No. 5 in this regard. Taking the two amendments together, section 19(1) would read: "The sender of an electronic communication shall be presumed to be the person or public body by whom it purports to have been sent,. . . ". The term "sender" would be subject to the qualification set out in section 19(2)(a) and (b).
While this deals with clarification, it does not solve the problem of ensuring that the sender is the person who purports to send. That needs to be addressed, but as a start I believe it would be better to concentrate on the sender rather than the content of what is sent. These amendments would, therefore, offer a preferable form of words to that set out in the section, although it does not provide a watertight means of dealing with somebody who is fraudulently pretending to be the sender.
These are interesting amendments and they raise an interesting debate about the section. As currently drafted, the section appears to create a presumption that the contents of an electronic communication are presumed to be accurate unless the opposite can be proved. The effect is to reverse the normal rule, that the relayer must prove authenticity if disputed. Given the fact that it is possible in certain circumstances to pretend to be somebody else on the Internet and also the fact that the content of an e-mail could in certain circumstances be altered by a third party, this presumption would be undesirable.
I thank Senator Costello for this amendment because it meant we had to consult with lawyers and other legislators. We need more time to address this issue. We are looking at what the UN model law suggests. We looked at the legislative proposals in the UK, which contained similar provisions but were dropped. The Australian legislation also included them but they were subsequently dropped. There is a need to ensure there is a correct legal framework to deal with this matter, but we have not had time to deal with it before this debate. I hope the House will agree to my proposal to introduce a similar amendment on Committee Stage in the other House. The Bill will then be reported back to this House when the matter can be discussed.
I accept the Minister's proposal. I wish her the best in her efforts to get it right.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 19 agreed to.
Sections 20 and 21 agreed to.
SECTION 22.
I move amendment No. 7:
In page 18, between lines 7 and 8, to insert the following new subsection:
"(2)In criminal proceedings a document shall not be admissible under this section where an original is available and the defendant requires its production.".
The purpose of this amendment is to bring admissibility into line with existing practice in other legal proceedings. The normal procedure is that an original document is available and presented once a legal action is taken, especially where a criminal action is involved. The amendment does not specify which should be the original but that a document should not be admissible where an original is available and the defendant requires its production. It protects as much as possible against copies being used in important criminal proceedings, which is the norm under the existing process where paper is concerned. The original is always sought and it should also be presented for electronic transactions as this is a desirable norm. That would probably place an obligation that there should be some means of saving the original transaction. Obviously that would be desirable anyway from the point of view of the various parties to the contract.
The amendment tries to bring the Bill into line as much as possible since it is enabling legislation, the thrust of which is to try to provide an alternative mechanism to that used in the paper world. Where proceedings arise in a criminal offence, the best practice available should be used.
The amendment is very sensible as it gives certainty to what would clearly be the desirable way of dealing with the matter. It is better in legal proceedings to submit an original, electronic or paper, where it exists because it gives greater certainty. I am glad to accept the amendment.
Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
SECTION 24.
I move amendment No. 8:
In page 18, line 19, after "which" to insert ", in the State or, in connection with any transaction conducted wholly or partly in the State, elsewhere,".
The Bill allows for the prosecution of offences within the State, but there may be offences which are committed wholly or partly in the State or elsewhere which may impinge on transactions abroad. The purpose of the amendment is to cover fraud which may take place in the State but the effect of which may be felt outside the State. The amendment has been tabled to cover that eventuality and it is hoped that it would extend the remit to which the prosecution of offences would apply.
I thank the Senator for the care taken on this. We have discussed this with the Attorney General's office and we have agreed the point in principle but it must be worded in another way. The Attorney General's office likes to have its own wording on matters. We have an amendment which we will circulate and will table for Report Stage. It states: "The provisions of section 24 extend to activities that took place partly outside the State.” It is a trimmed down version of the amendment the Senator tabled but it will be in my name on Report Stage.
Given what the Minister has said, her amendment adequately covers what I seek to do here.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 19, paragraph (f), line 1, before “publishes” to insert “knowingly”.
This is another amendment to clarify the situation. Section 24 has "knowingly" as the introductory word to all the items covered by the prohibition of fraud – knowingly accesses, knowingly alters, knowingly creates and knowingly misrepresents. In section 24 (f) the word “knowingly” is omitted. It would be proper to include “knowingly” as the paragraph goes on to state “publishes a certificate or otherwise knowingly makes it” and it is not clear that the term is used in the same fashion as it has been used in the other paragraphs.
The omission of "knowingly" is incorrect in this case and its insertion is an added safeguard, so I accept the amendment.
Amendment agreed to.
Section 24, as amended, agreed to.
SECTION 25.
I move amendment No. 10:
In page 19, subsection (1), line 19, after "Síochána" to insert "not below the rank of Inspector".
This is similar to amendment No. 7 which dealt with obtaining original documentation and extending the application of the prosecution of offences. Best practice in investigative procedures stipulates that a promoted officer not below the rank of inspector and not just a member of the Garda Síochána can provide search warrants and that it is on the sworn information of such a person that a judge will usually make a decision. It would be best for us to specify that to strengthen the credibility of the process which would be embarked upon in investigative procedures.
The amendment is reasonable and, furthermore, it is used in other Bills and Acts. I remember a similar case in legislation with which I dealt last year. The rank as specified in the amendment is reasonable and acceptable.
Amendment agreed to.
Section 25, as amended, agreed to.
SECTION 26.
Government amendment No. 11:
In page 20, lines 17 and 18, after "disclosure" to insert "or enabling the seizure".
Section 26 already makes clear that nothing in the Bill shall be construed as requiring the disclosure of private keys or codes. The amendment clarifies that nothing in the Bill shall enable the seizure of such keys or codes. The amendment further reinforces that the Bill shall not enable the seizure of private cryptographic keys or codes as the Government recognises industry's concerns that making such seizure rights a feature of the e-commerce regulatory landscape could hinder the development and growth of electronic commerce in Ireland. The words "enabling the seizure" are an added safeguard.
I fully agree with this amendment which will add to people's confidence in transactions by ensuring the privacy of the proceedings.
I do not have any difficulty with what the Minister is saying. Where normal activities are concerned, there is no threat to anyone as transactions occur between two valid and consenting companies. However, if a mafia group decided to work via e-commerce and if there were an intention to prosecute that group, how would criminal activity in this area be dealt with?
People are obliged to hand over the plain text of what is encrypted in electronic transactions. However, the Senator has asked a much wider question in regard to the operation of organised gangs. The Department of Justice, Equality and Law Reform would have a role to play in regard to criminal activity. During the Second Stage debate, we made it clear that this Bill was clearly intended to benefit business endeavours and we expressed a desire to keep the Bill simple, understandable and clear-cut. The Home Affairs Office in the UK and the Department of Justice, Equality and Law Reform deal with pornography and the mafia-type operations to which the Senator referred. I am not being dismissive of the huge concerns which exist but my Department's remit in regard to this legislation was to make it clear-cut and straightforward.
My party has not any difficulty with what the Minister is doing here. However, I would like to tease out this issue a bit further. It is very important that we support commercial activity. For 99.9% of the companies which will be attracted to this country as a result of our legislation, this is an excellent Bill. I totally accept the thrust of the Minister's comments but I wish to express my concern that some difficulties may arise in this area. If, in the public interest, a clear demand was made that every aspect of the activity of a criminal company should be obtainable, could this section of the Bill prevent other arms of the State receiving such encryption?
We have discussed this issue at length within the Department. I am not in a position to tell the Department of Justice, Equality and Law Reform what to do but I understand that, under its remit to catch criminals, it must produce a Bill complementary to this one. I do not have the remit to produce such a Bill.
I welcome the Minister's comments but wish to register my concern about this matter.
Amendment agreed to.
Section 26, as amended, agreed to.
Sections 27 and 28 agreed to.
SECTION 29.
Government amendment No. 12:
In page 22, subsection 2(e), line 31, after “granted” to insert “, renewed”.
Subsection 2(e) as currently drafted provides that the Minister of the day can make regulations governing the circumstances in which domain name registrations are granted or refused. Such registrations are renewed on an annual basis at present. This amendment provides that the manner in which renewals are carried out may also be covered by any regulations which may be made. This amendment is intended to provide clarity in regard to the making or renewal of regulations.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 13 and 14 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 13:
In page 22, subsection (2), lines 36 to 39, to delete paragraphs (h) and (i).
The Office of the Attorney General has indicated that it is not appropriate to allow the penalty for offences to be created in secondary legislation as was originally proposed in the Bill. Consequently, paragraphs (h) and (i) are deleted and the penalty for contravening any regulations made under this section is inserted into a new subsection.
Amendment agreed to.
Government amendment No. 14:
In page 22, between lines 41 and 42, to insert the following new subsection:
"(3)A person who contravenes or fails to comply with a regulation made pursuant to this section is liable on summary conviction to a fine not exceeding £500.".
Amendment agreed to.
Section 29, as amended, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
