Digital Legislation
Date: October 15, 2003Source: Computer Crime Research Center
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The election campaign has ended, the excitement around structuring the Parliament will calm down. The everyday work on establishing laws, determining their priorities will start early or late. It is desirable that People’s deputies would not forget establishing digital legislation after that.
Up-to-date computer information technologies have penetrated into all spheres of human activities: business, education, health protection, public administration, information services, leisure and so on. According to a digital economy analysis, nearly 5% of gross world product will fall at Internet-economy in 2003. In five years, every second expert will obtain the second high education in a remote way. An increasing number of social relations connected with computer technologies results in the necessity of adequate response on the part of lawmakers. News web sites have many reports on different countries-accepted laws of electronic documents, digital signature, e-commerce, fight against cybercrimes, protection of personal data, features of realizing that or other activity in Internet.
The fundamental interstate bill “On declaration of human rights in the digital world” has been even introduced. Its author, the mayor of Issi-le-Moulino and co-chairman of the group studying information technologies in France National Assembly, made an attempt to give a system, global and legal meaning to the digital world. It proves the necessity of accepting laws that would secure human rights and freedoms in the e-world. The system of digital laws must protect property, liberty of speech, freedom of enterprise and competition, and so on.
What priorities can be determined when making digital laws in Ukraine?
Information computer technologies can be perfectly translated into life by business. Some factors explain it. These technologies considerably increase the effectiveness of business processes inside the company and establish more dynamic, comfort relations with partners and consumers. Today some models of e-business are known. However, those taking into a nicer consideration the specific character of relationships appear as well. What combines all them? First, it is a paperless technology when information is electronically exchanged inside the company and out of it. It seems to be good but there is a problem. When it is necessary to make contracts, send commercial proposals, fix any events and so on, the appropriate paper document should be immediately drawn up.
The problem seems to be solved when two or several companies electronically engaged in business with each other agree upon recognizing electronic documents as equivalent to paper ones. It can be considered as that until disputes occur. Documents corroborating or rebutting evidences of parties should be produced to consider deputes in court. Moreover, some laws starting with Civil Code directly require making transactions in written form. It compels business-structures to take electronic business accurately and make paper copies. Such a situation leads to collisions and confusions. The unsolved problem of recognizing juridical equivalence of electronic and paper documents restrains the introduction of relationship electronic forms into many other spheres of human activities that can result in juridical consequences for their participants.
It is an old problem. Since mid-80s, UNCITRAL Commission made out proposals for unification of legal requirements to do e-trade. Those proposals were systematized and reflected in UNCITRAL typical law of electronic commerce. In 1997, UNO recommended national governments to take into maximum consideration provisions of a typical law to develop their legislations. The long work resulted in accepting EU directive of electronic commerce in Europe. The equality of legal status for paper and electronic documents was proclaimed in both acts as a main principle. This principle of functional equivalent allows using the entire traditional basic juridical store accumulated over the period of making contracts in written and electronic forms. In addition, they unify the procedure of concluding on-line contracts, listing information on their parties, as well as establishing claim validity of e-contract and so on.
Ukraine started working on the bill that regulates relations connected with the use of electronic documents some years ago. Its quite difficult fate can be partly explained by little social demand for such legal regulation. It should be reminded that the legislation must not only fix already established social relations but also take part in making relations that will determine the vector of future social development. Therefore, the lawmaker should display great insistence when drawing up bills of using advanced technologies from political, social, technical, agrarian and especially informational sphere of society life.
At present, Ukraine’s bill “On electronic document and e-documents circulation” finished off by Science and Education Committee is ready for consideration in its second reading. As a whole, the bill complies with up-to-date legal regulation of these processes in the world. However, some moments can create difficulties when it is used.
Part III, Article 5 of the bill runs: “The law establishes forms and structures of the e-document, its essential elements and visual forms of its reflection”. If the e-document should have essential elements established by laws, it can entail huge and senseless work on making copies of all Ukraine’s legislative acts, which fix essential elements of paper documents in that or other way. It is expedient to determine the electronic signature as a specific element of the electronic document. The rest elements should comply with those for paper documents established by the legislation currently in force. Such negative consequences are resulted from the legislation demand to specify the form and structure of electronic document data.
The most serious mistake consists in that no bill standard provides for an independent legal force of the electronic document. The bill specifies that the electronic document should have a paper copy to be legally valid (Article 8). The recognized possibility of using the electronic document as evidence does not exhaust all the functions of the legally significant one. In other words, if this bill is adopted, the electronic and paper office work will be needed. What did we fight for? The availability of many reference norms makes the bill helpless, most of them referring to nothing.
The price of such defects is very high. Ukraine will hold up introducing computer systems of the office work. Many socially important projects of applying information technologies including e-government and e-commerce cannot be realized.
By the way, some words should be mentioned about the electronic commerce. When pinning great hopes on Ukraine’s bill “On electronic document and electronic office work”, it is necessary to elaborate and accept the law “On electronic contracts” where the legal regulation of the e-contract conclusion and implementation is reflected. It should describe not only e-commerce but also all the possible civil-legal transactions. This law should be harmonized as much as possible with the international legislation and, first of all, with European one. It is necessary to solve quite a serious problem of the terminological indefiniteness that is always specific for new spheres of human activities. All this will allow Ukrainian businesspersons to communicate and arrange with their home and foreign partners using a single electronic language.
The legal practice of advanced countries proves the necessity of accepting as soon as possible this important bill with due regard for accumulated international experience.
Any document should be identified with a legal and physical person that drew it up. The humanity uses signatures and seals in paper documents whereas in e-documents – e-signatures. The electronic signature means e-data attached to or logically combined with e-document and serves as identification.
All standards concerning the e-signature are known not to enter the bill on electronic documents. They were included into a separate law entitled “On electronic digital signature” to simplify the process of accepting these two bills in Ukraine’s Parliament. However, the fate of the latter bill turned out to be not less difficult than that of the former one.
It should be reminded that there is EU Directive 93 of 1999, which aim is to legally recognize the electronic signature. The same laws operate in Germany, Italy, India and some US States whereas the bills are in Dania, France, England, Spain, Austria and so on. According to the national and international legislative base analysis, there are different approaches to regulating the use of e-signature. The cornerstone of this difference is a specific task of its use: either interstate or international.
Ukraine’s bill and, for example, Germany’s legislative base set forth an idea of using the e-signature within the framework of specially created, hardly regulated, state obligatory system of certification. First, such an approach regards as of paramount importance the secure and reliable use of electronic digital signatures. It has the right to life, especially, with due regard for possible threats to falsify electronic signatures and cause damage to parties using it. Practically every day we make sure of such...
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