(d) To promote public confidence in the authenticity, integrity and reliability
of data messages and electronic communications.
Such wording can serve to guide interpretation of a provision, particularly by a court
or arbitrator, in the event of a dispute. Rather than leaving a provision to be
interpreted literally, which may give rise to unintended consequence, reference to a
purposive provision should guide interpretation in supportive manner. The Task
Force recommends the preparation and adoption of such purposive provisions
(R. 1).
The nature of the subject matter addressed in electronic commerce laws means that
the impact may be horizontal across all sectors of business and the private sector, as
well as public administrations. While such a broad scope may be welcomed, it may
not always be appropriate in the circumstances. The legislation may, therefore,
include a provision specifically detailing the areas in which the law is intended to
apply. In general, for example, there will be a desire for it to be applicable in areas of
civil and commercial law. Electronic transactions laws are not generally applicable to
the field of criminal area, particularly criminal procedure, since this may have
unintended consequences. It will be a matter of policy as to whether the law will
extend to administrative acts carried out by public authorities. Even in those areas
where the law does apply, explicit recognition may be given to the fact that there are
exemptions, either on the face of the law or arising under general principles already
present under national law. The Task Force recommends that any electronic
transaction law be generally applicable to all civil and administrative law
matters (R.2).
While governments may wish to extend the application of the law as widely as
possible, subject to the express exemptions, such application may not always be
appropriate or anticipated by the drafters. As such, it is recommended that the parties
to an electronic transaction have the right to vary the provisions of the law through
private agreement. While such agreements should not be capable of undermining the
general thrust of the measure, or cause some other forms of harm, such as to
consumers, the parties should be given the freedom to derogate by mutual agreement
on certain matters. The Task Force recommends that private entities be given the
freedom to depart from the provisions of the electronic transactions law by
agreement, in specified circumstances (R.3).
As with most areas of law and regulation, a necessary first step is to define certain key
terms used in the body of the instrument. Such definitions aid interpretation in the
event of a dispute, especially when a term has multiple meanings that vary according
to context. In a technology environment, there is also the need to provide some
explanation to the potential audience, such as trading partners or the judiciary. A
failure to supply satisfactory definitions may undermine one purpose of the measures,
i.e. to reduce legal uncertainty and therefore facilitate the activity. The terms defined
in electronic transaction laws tend to include the designation of certain persons, e.g.
the ‘addressee’ and the ‘originator’ of an electronic communication, which has legal
consequences; certain technological concepts, e.g. an ‘information system’, to
distinguish it from other subject matter, such as computer data, and certain activities,
e.g. the issuance of certificates in a digital signature environment. The Task Force
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