recommends the wording used in the United Nations Convention on the Use of
Electronic Communications in International Contracts (2005)5 (R.9).
2.1.4
Government acts and transactions
Many of the requirements that things be done using pieces of paper are found not in
statute but in administrative rules and regulations, i.e. existing custom and practice.
The acceptance of electronic alternatives requires as much a cultural shift within the
practices of public authorities, as it does require amendments in the law. However,
explicit recognition of the role of government and public administrations in the
validity of electronic transactions in law can serve to facilitate such a cultural shift.
The objective of facilitating eGovernment could be a stated objective at the
commencement of the law.
It must also be recognised that a simple liberalisation scheme may not be appropriate
across the range of administrative functions being carried out and therefore an
authority should have reserve powers to specify certain requirements in respect of
electronic communications. While it seems appropriate to encourage governments and
administrations to accept electronic communications, requiring that private entities
and individuals accept electronic communications from governments or public
authorities would seem an inappropriate imposition.
The Task Force recommends that specific provision be made in any electronic
transaction law stating that public authorities should accept electronic modes of
communication (R.10).
2.1.5
Liability issues
Where illegal content is made accessible over the Internet in contravention of
applicable national rules, states will often require a Internet service provider (ISP) to
hand over any details which may establish the real-world identity of the content
provider. The ISP is also often required to remove the illegal content and any links to
it that have been found to exist on its servers. As one of the key purposes of content
regulation is to ensure that certain kinds of information are not available to the general
public, such requirements can be used in an effort to make sure that content regulation
is enforced even if the provider of the illegal content cannot be identified and
prosecuted.
However, a key question that arises in relation to the role of ISPs is whether they may
be held liable in respect of the third-party content that they may provide access to,
cache, or host, without knowledge? If ISPs were to be held liable for all content to
which they provide access, then they are less likely to offer such services, which
would be to the detriment of the development of eCommerce.
As a consequence, many states provide ISPs with certain immunity from civil and
criminal liability for third-party content, to the extent that they are simply providing a
communication or storage service and are not responsible for, or are not aware, of the
illegal nature of such content. Once an ISP becomes aware or has knowledge of the
5
Article 10.
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