The Task Force recommends that the electronic transaction law facilitates
electronic record-keeping and permits the admission of electronic records as
evidence before a judicial, administrative or dispute resolution body, subject to
certain conditions (R.7).
The Task Force recommends that regional standards be developed, reflecting
international standards, to assist judicial, administrative or dispute resolution
bodies to evaluate the evidential value of electronic records (R.8).
2.1.3
Communications Process
One of the most significant characteristics of eCommerce is that geographic
boundaries become irrelevant: people throughout the world can communicate quickly
and easily, and many times may do so without knowledge of the location of the other
party. While geography may be irrelevant for eCommerce, however, geography – and
particularly the place where certain acts such as the dispatch or receipt of a
communication occur – is still relevant to several legal issues in such areas as private
international law (i.e. choice of law and forum) or contract creation. Moreover,
determining the place of dispatch or receipt raises a variety of questions: is the
message sent when the “send” button is pushed, or is something else needed? Is a
message received when my server receives it, it is put in my mailbox, I download it,
or I read it? These and similar questions require a clear, and consistent, answer.
Therefore, many electronic transaction laws contain provisions defining when and
where dispatch and receipt occur.
The question of “when” something is sent or received is generally determined by
reference to whether the message is within the sphere controlled by the sender or the
recipient. Thus, dispatch occurs when the message “enters an information system
outside the control” of the sender. Similarly, where the recipient has designated a
certain information system for receipt of messages, receipt occurs when the message
enters that information system. However, if the recipient has not designated any such
information system, no receipt occurs until the recipient actually receives it.
Addressing the “where” issue is more complicated. The difficulty with “where”
something occurs is that the physical location of the parties at any relevant time
(particularly with laptop usage combined with cellular or wireless technology) may
not only constantly be changing, but may be unknown. Thus, any relationship
between a person’s location and the underlying transaction may be entirely fortuitous.
Moreover, the location of the computers or systems processing the information, e.g. a
web server, may be equally irrelevant to the transaction. As a result, a data message is
deemed dispatched at the place where the sender has its place of business, and is
deemed received at the place where the recipient has its place of business. Both these
locations are comparatively easy to lay down in law.
The Task Force recommends that the electronic transactions law addresses the
issue of when and where an electronic communication is sent and received, and
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