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* Mohammed L Ahmadu LLM (Warwick) ACIS (UK) Associate Professor of Law, University of the South Pacific; doctoral candidate in law.
Abstract Conventional legal principles that support contractual relationships must be adapted to keep abreast of developments in the evolving ICT revolution (digital technology and the Internet) and e-commerce. Small island states — and developing countries in general — cannot afford to lag behind: to position their economies in the global trading system they must embrace e- procurement as a development imperative. This article attempts to make the case that the economic and technological vulnerability of small island states in the South Pacific will be minimised, and their capacity to effectively participate in global trade enhanced, if they establish a functional and fully integrated legal and technological framework to support electronic-based transactions nationally and regionally.
To overcome these challenges the use of the Internet and associated technologies, anchored and operating in a suitable legal framework, is now necessary. These will assist in converting disadvantages into strengths rather than continually looking at the small island states as helpless. With a suitable legal framework and functional ICT infrastructure, particularly in the area of e-procurement or commerce, small island states in the South Pacific will be in a position to open up their economies to much-needed foreign investments and equity or joint venture capital. At the same time these states will be able to electronically market their natural resources or products regionally or globally, without having to engage expensive middle dealers or intermediary services. There are innumerable benefits, both potential and actual, which flow from the electronic procurement of goods, services or construction.
To set the scene, a brief discussion on the techno-legal basis of the Internet will be undertaken. Internet technology provides the primary mechanism through which widespread electronic transactions can be conducted with relative push-button ease. The technology is particularly relevant to the situation of small island states of the South Pacific because of their remote geographical location and limited infrastructure. The experiences of Malaysia and Singapore will also be discussed in order to show the relevance of their ICT practices, in the field of online transactions, to small South Pacific island states. In view of their developing-country status and their location in the Asia Pacific region, Malaysia and Singapore could serve as ideal legal and technical models to small island states.[1]
This article simply aims at examining the legal possibility of incorporating an online transaction or contract as a platform for the procurement of goods, services or construction in small Island states of the South Pacific.
In the conventional legal sense, however, the validity and enforceability of a transaction made or contract entered into by parties depends on the existence of offer, acceptance, consideration and intention to create legal relations. The law assumes that the parties will be able to establish the existence of a contract whether orally, in writing, by conduct or partly through any of these three means. Furthermore, the rules in relation to these four cardinal elements of contract are fairly settled law. As the use of the Internet to transact through the formation of online contracts raises fundamental legal issues, a brief exposition of how the Internet works is provided here.
The Internet provides an open channel of electronic communication covering vast distances, using complex technology and equipment to transmit or exchange data, sound or images between multitudes of computers all connected in a global communications network. In this regard, the Internet has been appropriately described as communications technology.[3]
Information sent from one computer to another via the Internet is transported through several servers at random by using the most efficient route until it finally reaches its intended destination. The information is broken into ‘packets’ for transit at the point of despatch and reassembled into its original form at the point of receipt. For the information to be transported through the network, a protocol must be used, the most important being the Transport Control Protocol (TCP).[4] The Internet Protocol (IP) determines what server should receive the ‘packet of information’ for onward transmission. To access the Internet via any website[5] , the user must indicate the correct Uniform Resource Locator (URL) to visit.
The use of this technological infrastructure means that at any given time, multiple copies of packets of information are temporarily copied by different servers in different locations worldwide. The physical location of each server depends on the routing. Emails are regulated by means of other application protocols, namely the Simple Mail Transfer Protocol (SMTP) and the Post Office Protocol (POP).[6]
In dealing with the technological aspects of the Internet as a vehicle for online transactions, the legal effects of the technology and operations involved need to be examined.
A supplier of goods or services wishing to host a website to use the Internet for online transactions must first register a domain name.[7] Generally speaking, the contents and ownership of the domain name may have nothing to do with the trademark protecting the domain name. The website and server hosting services are normally handled by an Internet Service Provider (ISP). Servers may crisscross different jurisdictions or transmit or exchange information passing through a number of converging or diverging legal systems. From a legal standpoint, the role of such intermediaries also needs to be taken into account. This is particularly so when the issue of client-server technology is brought into the picture. It is now possible for a user to obtain information indirectly from a third source, generally called reuser access.[8] Because Internet communication is conducted through computers and equipment, user identification becomes a problem. This requires a two-fold solution, legal and technical.
Technologically speaking, the domain is the Internet name and address.[9]
The website forming the domain name may contain information whether copyrighted[10] or not and may also have on it trademarks. The domain name may in some cases be a registered trademark itself.[11] Where this information is accessed and downloaded by different users at different locations, issues of copyright infringement are likely to be a source of legal concern.
As far as the informational contents of the domain are concerned, infringement of copyright or trademark may be sustained if such written material enjoys copyright or trademark protection. While in normal situations exceptions to copyright may be justified, the position is not so settled in the case of Internet-based materials.[12] There may also be the problem of determining the appropriate jurisdiction where the infringement took place and the proper law to apply. Where the domain name or address does not indicate any country, it is extremely difficult to determine the actual location of the breach.[13]
In addition, servers or hosts that help transmit accessed or downloaded information from websites may themselves have to make several temporary copies of the packets of information in the course of transmission from one end of the network to the other. Cache or mirroring processes may in this regard equally raise the potential for some legal concern.[14] In this instance, it is possible for the intermediary Internet service provider to be liable as a publisher. But unlike publishing traditional written materials, the act of the ISP in making copies or publishing information is an unconscious one because of the automated processes involved, necessitated by the advent of digital technology. Since servers are programmed to take decisions without direct human involvement[15] , the best way to avoid liability is to publish disclaimers on webpages.
Specifics of Electronic or Online Contracts
Generally speaking, the normal rules of contract do not present any difficulties in conventional agreements between parties transacting interpersonally. Internet technology creates a slightly different legal setting because online transactions[16] are formed and executed in the ‘virtual realm’.
Electronic transaction or electronic data exchange offers the great advantages that it facilitates the formation and execution of contracts with greater speed, reduces overburdening paper work, facilitates transactions across vast distances, and allows information to reach multiple jurisdictions simultaneously. [17] However, it also involves the difficulties of having to fit into neat electronic configurations the principles of offer, acceptance, consideration and intention to create legal relations.[18] A number of legal questions need to be very clearly answered before such transactions can be standardised as conventional contracts.
It is therefore important to determine the starting point for online transactions. Given the nature of web advertising and the fact that information posted or hosted on the website may be held for a considerable length of time, to commence an agreement, suppliers will have to initiate transactions by means of invitation to treat. The offer is to come from the user who is accessing the site. A time frame for the validity of the offer made should also be stated. Conditions and warranties governing online offers are to be made automatically visible and legible on access. Where links are to be used, these should be in frames on the webpage containing the invitation to treat. If hyperlinked, it should be made visible and the prompt on the browser automated as a condition for browsing the site. This is important to guard against unwanted transactions and possible legal liability against the suppliers. It also helps to inform potential offerors of the circumstances of the contract.[19]
With regard to acceptance by an offeree in online transactions, it is generally agreed that clickwrap[20] creates a contract between the parties. This is now equated to an adhesion contract in conventional agreements.
The difficulty in this regard is where email is used to confirm acceptance of the online transaction. Unlike an Internet transaction, which is instantaneous, email is not.[21] At what point should acceptance be considered complete — is it at the point of the offeree sending the email or at the point it is received by the offeror or when it is read? It is apparent that the normal rules of telephone, postal or telex acceptance may not be of much help here, unless substantially modified.
Consideration is automatically supplied where online payment is effected by the offeree. This is usually a condition precedent to complete online transactions. However, the issues of security of the method of payment used and the extent to which digital cash may suffice as an alternative to other electronic methods of payment are still being probed.[22] The crucial question is, who bears the risks of breach of security during payment? Should this be the user, if from its end, or the ISP, if in the course of transit, or the supplier, if from its end? There is no clear-cut legal answer to this problem, mainly because of the nature of the digital technology involved.
Intention to be bound by an online transaction or contract will not present many legal problems, so long as the elements of online offer, acceptance and consideration are first established. Where these three elements are present, it is logical to assume that the parties intended to be bound by the agreement.[23] In this context, it will not be difficult for the normal rules of contract to apply to online transactions as well.
A most pressing aspect of electronic transaction, needing immediate and clear legal resolution, is the question of trust. The identity of the offeror or offeree transacting online has to be fully ascertained at the outset of the transaction, and be so maintained until the conclusion of the transaction. The acceptance of digital signatures and electronic certification of signatures,[24] including the role and liability of authenticating authorities, also need to be fully determined. Encryption technology is aiding the law in this area and attempts are also underway to set global standards for digital signatures and certification systems.[25] Whether the law is fully keeping abreast with these technological developments is another matter. The extent of commercial Internet fraud, due to insecure payment systems and the lack of proper digital identification of the user, is also causing legal concerns.[26]
Where a breach of an online or electronic transaction is established, probably another problem to deal with will be conflict of laws.[27] There may be a choice of law clause, but even then the issue of the proper forum for dispute settlement is still to be pursued and resolved. This is further complicated by the fact that the offeror, the offeree, the ISP and the server hosting the contractual details may be located in different or conflicting jurisdictions. In ordinary contracts the physical location of the offeror, offeree, property, or place of breach can easily be used in determining the proper forum. For instance, the recent decision by the Australian High Court now raises the possibility of using all connecting factors for purposes of determining the proper forum for a defamatory publication on the Internet.[28]
By way of example, where acceptance is communicated by post, it is deemed complete at the point of posting. This is consistent with the rule of postal acceptance established in Adam v Lindsell.[29] Where acceptance is sent by telex, it is deemed complete when received at the other end.[30] The same position applies to facsimile transmission as to a telex transmission. In the case of acceptance by email, it has been suggested that the telex analogy is again the better course to follow.[31]
While it is possible to consider the postal or telex analogies to Internet- based transactions, the principles of either cannot easily be applied to online contracts without encountering some practical problems, primarily because of the ‘virtual difficulty’ created by Internet technology and its communication processes. Attempts to find solutions to this novel problem principally rely on electronic or online dispute resolution mechanisms.[32] However, because this would seem to attempt a ‘virtual’ solution to a ‘virtual’ legal and technological problem, the efficacy or widespread acceptability of the method at the global level is yet to be seen.
In trying to link the principles of contract to those of international procurement, it is apparent that the normal contractual principles will also form the foundation for determining the validity of procurement agreements. As is generally known, any procurement contract involves a two-stage process. The two stages apply equally to online transactions. Every online contract starts as an invitation to treat and then transforms itself into an offer. A procurement contract proceeds along the pattern. A typical procurement agreement and an online contract share similar features and processes. In a procurement agreement, the tendering processes form the invitation to treat before these are then converted into an offer by the tenderer.
The use of online contracts as the bases for e-procurement in small island states (SIS) also raises the concomitant issue of whether client island governments are prepared to go electronic when dispensing public services. The extent to which small island governments will oblige to divulge commercial information in their possession is also a matter to consider.[33] Becoming an e-government, however, is not a precondition for a state to engage in e-procurement. Nevertheless, by transforming themselves into e-governments, SIS will progressively develop their technological and legal infrastructure, thereby making them conducive to effective e-transactions.
There are enormous benefits for governments to also engage in e- procurement for construction works, goods or services needed for national development. Short-term difficulties — in terms of financial costs, lack of political will, and the absence of strong technological foundation — will have to be encountered, but are not insurmountable. Given the current trends globally, the advantages of e-procurement by far seem to outweigh the disadvantages.
It is generally assumed that only industrialised societies derive benefits from e-procurement activities. This is far from the reality. A number of developing countries and ‘fast growing economies’ have progressively used e-procurement as a cardinal pillar of their national development objectives. While countries like the United States, the United Kingdom,[34] Canada,[35] Denmark, the European Union,[36] Australia [37] and New Zealand[38] are ahead, others like Malaysia and Singapore are close behind.
In some aspects, the pace of e-commerce advancement in Malaysia and Singapore is remarkable when compared with some industrialised countries. In view of this, the legal perspectives of information and communications technology (ICT) in Malaysia and Singapore will be examined in some detail by way of comparison, or as a pointer to what might inform future trends in South Pacific SIS. Both Malaysia and Singapore are ‘developing countries’ and are roughly situated in the Asia–Pacific region. There may be important lessons in the development of their ICT for SIS in the region.[39]
Malaysian and Singaporean Perspectives
In the case of Malaysia, the National Information Technology Agenda of 1996 set the momentum for e-commerce, the development of appropriate hardware and software technologies and the institution of a legal framework to accommodate any accompanying changes. A significant aspect of this policy was the creation of the Multimedia Super Corridor[40] aimed at fostering the development of e-commerce.
To augment this initiative a number of laws were passed, including the Digital Signature Act, Telecommunications and Multimedia Act, Computer Crimes Act, Personal Data Protection Act, and Malaysian Communications and Multimedia Commission Act.[41] Of significance is the Telemedicine Act. Important amendments were also made to the law in order to accommodate changes brought about by e-commerce. This resulted in the Copyright (Amendment) Act 1997.
The general effect of all these laws was to inaugurate the necessary legal framework which will aid the development of e-commerce and information technology (IT). Under the Multimedia Super Corridor, a number of joint venture contracts were signed to promote education and training, application development, and telecommunications and infrastructural projects.[42]
Singapore has taken similar measures, starting in 1996 with the Electronic Commerce Hotbed Programme — a national policy initiative aimed at facilitating e-commerce in the country. In 1998, the country moved another step forward by inaugurating the Electronic Commerce Master Plan. Its objective was to assist in involving the public and private sectors, as well as provide a forum for international e-commerce.[43] To facilitate the creation of the necessary legal environment, Singapore also passed the Electronic Transactions Act 1998,[44] Computer Misuse Act, and an amendment to the Evidence Act which makes digital records admissible in court.
The Electronic Transactions Act deals with the recognition of electronic records and signatures and specifies the extent of liability for network service providers. It also has provisions dealing with electronic contracts, digital signatures, the role of certification authorities, and the extent to which governments can make use of electronic records. Other provisions cover confidential access to computers and data.[45]
The Computer Misuse Act creates new offences relating to unauthorised obstruction of the use of computers and unauthorised disclosure of passwords or access codes. It also introduces stiffer penalties for existing offences such as unauthorised modification, use or interception of computer services.[46]
In both Malaysia and Singapore, the governments committed substantial sums toward the provision of necessary physical infrastructure, consultancy services, incentives and support to willing participants in the private sector. These measures were supported with e-commerce public education programmes.[47] This is to demonstrate the seriousness with which Malaysia and Singapore have grabbed the revolution in ICT, realising that it not only is a key to national prosperity, but also can assist in the functional mental and economic development of their nations and citizens. Certainly in these trends are some important lessons for South Pacific SIS willing to tread similar paths.
In all countries of the region, public procurement is still being carried out through conventional contractual arrangements. At the moment no electronic version is contemplated except possibly in Vanuatu. To provide a fairly representative regional view of the prevailing situation, this segment of the discussion will focus on Kiribati, Vanuatu, Tonga, Samoa and Fiji.[48]
A Kiribati
There is at present no national ICT policy in operation. In the area of intellectual property there is the Copyright Ordinance ,[49] but this offers no recognisable protection for computer software or programs. The situation in Kiribati manifests an extreme case scenario in the South Pacific, possibly drawing countries like Tuvalu and Palau into its fold.
B Tonga
The Kingdom has published a Communications Policy Statement 2000. It has also embarked on policy revisions in the area of ICT with a view to possibly including online economic activities. Other matters still under consideration include the civil service IT strategic plan, legislation on electronic signatures and authentication of network users’ identities, and international cooperation on security on cyberspace issues.
It is also worthy of note that a new Communications Act was passed in 2000 and substantial amendments were made to the previous legislation covering radio, telegraph and broadcasting to take into account the use of digital broadcasting technology. Tonga has a national ICT consultative committee and the Tongan Telecommunications Corporation oversees the management of the country’s DOMSAT.
C Fiji
There is at present no coherent national ICT Policy. However, departmental level initiatives support a number of government information portals. There is a properly equipped and functional government ICT centre that services the IT needs of the government. The Southern Cross fibre-optics communications cable linking Fiji with the United States of America, Australia and New Zealand has been completed, allowing for high-speed data exchange and digital communications between these countries. The cabinet had in 2001 also discussed a paper on e-governance.
There is a copyright law[50] in existence, and e-commerce and ICT-related laws are to be passed in 2003.
D Samoa
There is no national ICT policy at present. However, through a number of initiatives, the government is able to support limited government information portals. An ICT steering committee was formed in 2002. A number of associated laws have been amended.[51]
It is worth mentioning that Samoa in 1997 amended its Communications Act to encourage the operation and development of Internet services in the country by transferring to the Post Office, the property held by the defunct Pacific Internet Services Limited.[52] Aside from this, there is nothing at present even in policy formulations to indicate a move in the direction of evolving a national ICT policy.
E Vanuatu
There is at present no integrated national ICT policy, but existing initiatives are adequate to support limited government portals (mainly for financial and commercial information). Vanuatu has passed two laws dealing with electronic commerce. These are the Electronic Transactions Act 2000 and the E-Business Act 2000.
The Electronic Transactions Act is aimed at regulating the increasing pace of electronic transactions, which are in vogue today.[53] This is primarily due to the emerging trends in the use of IT in the conduct of business dealings arising from the status of Vanuatu as an offshore centre. The law deals with the legal requirements of electronic records; communication of electronic records; electronic signatures; encryption and data protection; and intermediaries and e-commerce service providers. These important aspects of e-commerce are now regulated in Vanuatu.
The E-Business Act is aimed at complementing, in a general sense, the conduct of electronic business transactions. However, the scope of the law is limited to electronic businesses carried out by international companies.[54] It is not of general assistance to all types of online contracts or transactions. The law covers cyber-suite contracts and electronic business contracts; cyber-suites and e-business accounts.
As earlier pointed out, the laws in Vanuatu are not part of a national IT or e-commerce policy strategy of the government. There is some progress. However, the current initiative is limited to private sector needs, which in any case have also been confined to the banking, Internet gambling and casino sectors of the economy.[55] At least for now, there is no public sector support towards ensuring that a technological foundation emerges to complement the laws in this area. However, the extent to which Vanuatu has recognised the need to pass these laws and is preparing to be integrated in the global information revolution, even if progressively, indicates that the country is looking forward to developing the necessary integrated national infrastructure for e-commerce.
Given this scenario, it is clear that island countries still have a lot to do in terms of policy initiatives and investments if they are to establish the necessary infrastructure for the conduct of e-commerce. Except for Vanuatu, where the legal framework has been established, Samoa, Fiji, Tonga, Kiribati and the others need very specific laws to deal with the various aspects of this new phenomenon. The advantages of e-transactions are not restricted to the private sector. The public sector will have much to gain by engaging in e-procurement. For SIS with limited resources, technological base and expertise, the benefits of e-procurement activities cannot be underestimated. To realise these benefits, countries within the region have to inaugurate a legal regime to provide a viable legal framework for electronic transactions.[56]
Two basic legal frameworks can guide the setting up of any proposed regional information and communications committee which may be tasked with the responsibility of establishing this proposed facility. These are the WTO Agreement on Government Procurement, 1994 and the UNCITRAL[57] Model Law on Electronic Commerce, 1996. The proposed ITLC may provide a regional administrative, technical and legal facility for e-transactions by addressing issues of common interest to all countries. Such issues might include recognition of external certification agencies and the issuance of digital certificates. Island countries will definitely wish to have some say in matters involving encryption technology and certification procedures because of their potential impact on national security issues.[58]
As a starting point, it may prove helpful to South Pacific SIS to become signatories to the WTO Agreement on Government Procurement 1994. Perhaps they may also have to adopt the UNCITRAL Model Law on Electronic Commerce 1996[59] as a potential legal guideline when drawing up their national e-procurement laws.
Furthermore, since most of the island countries are increasingly being integrated into the global economy — either through their direct participation in the WTO or through other regional agreements like PICTA,[60] PACER,[61] SPARTECA,[62] Melanesian Spearhead Group[63] and Cotonou Convention[64] — being signatories to the WTO Government Procurement Agreement will also be another important step towards considering the extent to which the UNCITRAL Model Law on Procurement of Goods, Construction and Services, 1994 is likely to be adopted as a national law.
The Model Law on Electronic Commerce can serve as a useful guide for South Pacific SIS nations willing to formulate national e-procurement laws. The model law deals with all areas of interest relevant to e- commerce. In particular, chapter 2 provides for the application of legal requirements to data messages[65] and chapter 3 covers issues on communication of data messages, explicitly giving recognition to the validity of online contracts, amongst others. Significantly, part 2 deals with specific e-commerce transactions such as carriage of goods. Thus, it is up to national island authorities working within the framework of the model law to devise suitable provisions in their proposed e-procurement laws.
It must also be mentioned that, for most of the island countries, the technical and legal expertise necessary to accomplish this objective are not readily available. Consequently, some form of assistance may be required from UNCITRAL. Probably this will indicate why it is necessary for SIS to also consider joining the WTO Agreement on Government Procurement. This Agreement provides the multilateral framework for rights and obligations relating to procurement laws and regulations, all aimed at enhancing international trade. Article XXIV(8) clearly contemplates the emergence of e-procurement laws in signatory countries.[66]
In the context of national island economies, South Pacific island governments are by far the largest consumers of goods, construction and services. Transforming the existing manual system of public procurement into an electronic one will lead to enhanced efficiency, cost savings and speedier decision making.[67] Overall this will augment responsiveness to national development goals and aspirations. Beside businesses and the general commercial public, governments in the region can effectively maximise their e-procurement choices in terms of price, quality, product or service range, etc. The potential benefits in the areas of commercialisation and privatisation of economic activities are also too numerous to be ignored in the case of SIS. Thus, governments should be encouraged to pass appropriate ‘e-public procurement’ laws, or consider amending existing national procurement laws to accommodate e-procurement of goods, services and construction.
There must first be the political will to embark on such a transformation process. It must be driven by a deliberate and comprehensive policy initiative to revolutionise the state of ICT in each island country or across the region.
Island countries should also embark on mass public information and communications awareness campaigns. The tremendous benefits that are likely to be reaped from being part of this progressive technological revolution are enormous. Information and communications technology should be included in educational curricula right from primary school through to university.
Both the formal and informal sectors of education should also benefit from training in ICT. This is the surest prelude to providing the much-needed professional and technical labour force in the future. The steps taken by Malaysia[68] and Singapore in this regard are instructive. Their bold initiatives have now put their countries on the cutting edge of ICT.
South Pacific SIS should be encouraged to appreciate that one of the most important factors for generating personal and national wealth is the optimal utilisation of technical knowledge. The traditional factors of production like land, capital and labour are still useful; however, the utilisation of knowledge is the best of all. Today’s revolution in ICT is clearly knowledge-based. If the ICT drive is embraced by South Pacific SIS, their former limitations in size, landmass and material and human resources will be no hindrance. This partly explains why small island nations stand to benefit from this new technological development.
It is to be equally acknowledged that in the foreseeable future, the transition from a manual society to one that is e-based will certainly be public sector driven in view of the enormous costs involved in setting up and running the technology. Through a host of encouragement measures and incentives — as is the case with Malaysia — the private sector can gradually be attracted to play an active part in ensuring that a solid ICT foundation is laid in the region.
An economy that is based on ICT will greatly facilitate the inflow of economic investments. This will give a number of SIS the opportunity to showcase their natural and marine endowments to international markets through free and accessible information portals. It will also assist in their rapid integration into the global economy.
Perhaps another way of looking at this would be for island countries to pool their resources and create what may be called a circular loop of information highway facility (SPSIHF) to link all South Pacific island countries into a network for high-speed data and information exchange, storage and retrieval.[69] This would be a regional technical arrangement probably hosted by the South Pacific Forum Secretariat. There is at present nothing similar to this proposal.
However, there are a number of commissions looking at different aspects of South Pacific life and development. At the moment there is no regional body that handles issues affecting IT and communication. The proposed facility may even lay the foundation for the establishment of a regional procurement centre. E-procurement could then be part of the arrangement. This will only be possible if South Pacific island countries are really prepared to embrace ICT as part of their national policy objectives. At the same time this needs to be a regionally integrated and coordinated facility.
The point being made here is that if physical and human factors constrain individual SIS from setting up the requisite national infrastructure for ICT, a regional arrangement can provide an alternative solution, at least until such time as small island countries are in a position to set up and manage their own ICT infrastructural systems. In time of scarcity and need, the answer is cooperative pulling together of resources and not competition.
Acronyms
ACP Africa(n), Caribbean and Pacific ADR alternative dispute resolution EU European Union ICT information and communications technology IP Internet protocol ISP Internet service provider (also IAP, Internet access provider) IT information technology ITLC Internet Technology and Law Centre (proposed) PACER Pacific Agreement for Closer Economic Relations PICTA Pacific Island Countries Trade Agreement POP post office protocol SIS small island states SMTP simple mail transfer protocol SPARTECA South Pacific Regional Trade and Economic Cooperation Agreement TCP transport control protocol UNCITRAL United Nations Commission on International Trade Law URL uniform resource locator WTO World Trade Organization
[1] See M L Ahmadu ‘Computer Software Protection in Fiji — Some Lessons from Korea’ (1998) 4 Computer and Telecommunications Law Review 19. It is possible for one country to adopt ways of doing things from countries that already have gone through the processes —in this instance copyright protection for computer software.
[2] Andrew Terret and Iain Monaghan, ‘The Internet — An Introduction for Lawyers’ in Lilian Edwards and Charlotte Waelde (eds,) Law and Internet: A Framework for Electronic Commerce (2nd ed, 2000) 1, where the Internet is defined as ‘a public international networks of networks.’
[3] See Christopher Reed, Internet Law: Text and Material (2000) 10. The original name of the Internet was ARPA, for the advanced research project agency that started in 1969 as a military communications facility.
[4] ‘The TCP controls the exchange of packets between hosts; it sets outs the mechanisms for checking whether the packet has arrived, for checking to ensure that it has not been corrupted in transit, and for resending it if transmission fails.’—R Braden, ‘Requirements for Internet Hosts — Communication Layers’ in Reed, above n 3, 12.
[5] The protocol defining the content of information is the Hyper Text Transfer Protocol (HTTP).
[6] Reed, above n 3, 12.
[7] See Daniel Tunkel and Stephen York (eds), E-Commerce: A Guide to the Law of Electronic Business (2000) 20–2; for the UK perspective see Markus Hoffman, ‘Internet Domain Names — Legal Disputes and Challenges under UK Law’
(2002) 13 International Company and Commercial Law Review 241–50.
[8] See Reed, above n.3, 57.
[9] See Michael Chissick and Alistair Kelman, Electronic Commerce: Law and Practice, (2nd ed, 2000) xxxiii, where domain is defined as: ‘A part of the Internet name that specifies certain details about the host such as its location and whether it is part of a commercial, governmental, or educational entity. The address is written as a series of names separated by full stops’. See also Reed, above n.3, 38 and William Black, ‘The Domain Name System’ in Edwards and Waelde, above n 2, 125.
[10] See generally Hector L MacQueen, ‘Copyright in Cyberspace: Shetland Times v Wills’ (1998) May Journal of Business Law 297–9.
[11] See Charlotte Waelde, ‘Trade Marks and Domain Names: There is a lot in a Name’ in Edwards and Waelde, above n 2, 171; Susan Singleton and Simon Halberstam, Business, the Internet and the Law (1999) 13–49.
[12] See generally Fiona Macmillan, ‘Striking the Copyright Balance in a Digital Environment’ (1999) 10(12) International Company and Commercial Law Review 350–8.
[13] See Stuart Dutson, ‘The Internet, Conflict of Laws, International Litigation and Intellectual Property: The Implications of the International Scope of the Internet on Intellectual Property Infringements’ (1997) November Journal of Business Law 495–513.
[14] ‘Caches’, or copies of webpages, are made by attaching special programs such as Java and Active-X. See generally Reed, above n 3, 19 and 24.
[15] Ibid 79.
[16] These are sometimes referred to as ‘distance contracts’: see Ian F Fletcher, ‘The Distance Selling Directive’ (1998) November Journal of Business Law 613–21. On the practical issues, see generally Michael Mahony et al, ‘Online Contracting’ in Tunkel and York, above n 7, 85–100; Andrew D Murray, ‘Entering into Contracts Electronically: The Real WWW’ in Edwards and Waelde, above n 3, 17–36.
[17] See Gregory Sega, ‘Computer Databases: Domestic Protection and International Trade’ (1999) 12 Intellectual Property Journal 305–35.
[18] See Denise McBurnie and Elizabeth Levinson, Contract: Sales of Goods over the Internet (2001) 1–51.
[19] See Reed, above n 3, 67.
[20] Here, all the terms of the contract are on the electronic form and it is up to the offeree to accept or reject them as a whole by pressing the appropriate button on the display. Micheal Mahony et al, above n 16, 93–100.
[21] Chissick and Kelman, above n 9, 95 [22] See Saul Miller, ‘Payment in an On-line World’ in Edwards and Waelde, above n 3, 37.
[23] Cf Martin Barker, ‘E-Commerce: New Wine in Old Bottle?’ (2000) 11 International Company and Commercial Law Review 293–6.
[24] For a very analytical comparative discussion on the subject see Christopher Nicoll, ‘Should Computers Be Trusted? Hearsay and Authentication with Reference to Electronic Commerce’ (1999) July Journal of Business Law July 332–60; for the Danish perspective, see Henrick Udsen and Kim Gredsted, ‘Digital Signatures — Legal Aspects from a Danish Perspective’ (1999) November Special Issue International Company and Commercial Law Review 15–20.
[25] Through the use of public and private keys encoding system using algorithm.
[26] For a legal-practice perspective, refer generally to Andrew Horrocks and Gary Hughes, ‘Law Online: A Risky E-Business?’ (2000) 11 International Company and Commercial Law Review 269–72.
[27] See Reed, above n 3, 187; Paul Torremans, ‘Private International Aspects of IP
– Internet Disputes’ in Edwards and Waelde, above n 2, 225.
[28] See Gutnick v Dow Jones & Co [2002] HCA 56. The author is grateful to the referee for this case. For a more detailed position on this emerging development, see Justin Hogan-Dora, ‘Jurisdiction in Cyberspace: The When and Where of On- line Contracts’, (2003) 77 ALJ 377–96. The author is also grateful to Peter MacFarlane, Associate Professor of Law, for this article.
[29] (1818) 1 B & Ald 681.
[30] See Entores Miles Far East Corporation [1955] EWCA Civ 3; [1955] 2 QB 327; Brikibon v Stahag Stahl und Stahlwarenhandelsgesllschaft GmbH [1983] 2 AC 34.
[31] See Michael Furmston, Cheshire, Fifoot & Furmstons’s Law of Contract (14 th ed, 1998) 56–7.
[32] See John Kendall, ‘Choosing a System for Resolving Commercial Disputes’
(2000) 11 International Company and Commercial Law Review 82–6; Stephen York and Susan Pemberton, ‘Litigation and ADR’ in Tunkel and York, above n 7, 235.
[33] Most countries in the region do not have any law on freedom of information. E- government is likely to force open information held by the state. This might go against well-established principles of public interest immunity, which a state traditionally enjoys. For a detailed survey of this position in the UK, see R S Baxter, ‘Public Access to Business Information Held by Government’ (1997) May Journal of Business Law 199–219; E-government Handbook for Developing Countries (Centre for Democracy & Technology, November 2002).
[34] For the UK position see Anthony Connerty, ‘Electronic Commerce: A United Kingdom View’ (1999) November Special Issue International Company and Commercial Law Review 65–76.
[35] See Barry B Sookman, ‘Electronic Commerce in Canada and the Law: A Survey of Legal Issues’ (1999) November Special Issue International Company and Commercial Law Review 201–10 for the Canadian perspective.
[36] See Mike Pullen and Kelly Logan, ‘The European Proposed Legal Framework for E-Commerce’ (1999) November Special Issue International Company and Comparative Law Review 21–3.
[37] For the initial developments regarding the Australian Electronic Transactions Act 1999, see Michael Pattison and Ana MacFarlane, ‘Recent Developments in the Australian E-Commerce Framework’ (1999) November Special Issue International Company and Commercial Law Review 10–14.
[38] For the emerging position in New Zealand see Stephen Revil, ‘Current E- Commerce Issues in New Zealand’ (1999) November Special Issue International Company and Commercial Law Review 48–54.
[39] See Luh Luh Lan and May O Lwin, ‘An Overview of E-Commerce Laws and Policies in South-East Asia’ (1999) (November) Special Issue International Company and Commercial Law Review 55–60.
[40] See P S Sangal, ‘Malaysia Creates Legal Infrastructure for Its Multimedia Super Corridor’ [1997] 12 International Company and Comparative Law Review 428–30. This is a land area of 15 x 50 kilometres located on the outskirts of Kuala Lumpur. Malaysia has now established two ‘smart cities’ to facilitate the development and application of ICT in everyday life.
[41] Several of these laws have now come into force: see Lan and Lwin, above n 39.
[42] See Sangal, above n 40.
[43] See Lan and Lwin, above n 39, 55.
[44] See Ravi Chandran, ‘Singapore’s Electronic Transactions Act 1998’ (1999) July Journal of Business Law 80–3.
[45] Ibid.
[46] Luh and Lwin, above n 39, 57.
[47] Ibid 56.
[48] The countries are drawn from Melanesia, Micronesia and Polynesia.
[49] Cap 16.
[50] Copyright Act 1999.
[51] These include: Posts and Telecommunications Internet Act No 27 1997; Postal and Telecommunications Act 1999; and Copyright Act No 25 1998.
[52] See Posts and Telecommunications Internet Act No 27 1997; Cf Communications (Amendment) Act No 251 (2000) Niue. It amended the Communications Act 1989 by designating the ownership and management of the country’s top level domain code, NU.
[53] This includes the practice of telemedicine.
[54] The domestic counterpart is the Companies (E-Commerce Amendment) Act No 27 2000 which amended s 378 of Cap 191. See also the International Companies (E-Commerce Amendment) Act 2000 which amended s 10 of the International Companies Act No 32 1992.
[55] These are also offshore transactions.
[56] These may include, for example: (a) a Computer Misuse Act or Computer Crimes Act, or extensive amendment to the extant Penal or Crimes Act; (b) a Digital Signature Act or amendment to the Evidence Act; and (c) Digital Telecommunications or Multimedia or Telemedicine Acts, if and when appropriate.
[57] The acronym stands for United Nations Commission on International Trade Law.
[58] Chissick and Kelman, above n 9, 163.
[59] See General Assembly Resolution 51/162 of 16 December 1996.
[60] The acronym stands for Pacific Island Countries Trade Agreement 2001.
[61] The acronym stands for Pacific Agreement for Closer Economic Relations 2001.
[62] This acronym stands for the South Pacific Regional Trade and Economic Cooperation Agreement 1982.
[63] Comprising Fiji, Solomon Islands, Vanuatu, and Papua New Guinea at present, with New Caledonia being considered. A free trade agreement was signed in 1994.
[64] This replaced the defunct Lome IV Convention, between European Union and ACP (African, Caribbean and Pacific) states, which expired in 2000.
[65] These include writing, signature, admissibility and evidential weight of data messages; attribution of data messages; acknowledgement of receipt; and time and place of dispatch and receipt of data messages.
[66] It states:
With a view to ensuring that the Agreement does not constitute an unnecessary obstacle to technical progress, Parties shall consult regularly in the Committee regarding developments in the use of information technology in government procurement and shall, if necessary, negotiate modifications to the Agreement. These consultations shall in particular aim to ensure that the use of information technology promotes open, non discriminatory and efficient government procurement through transparent procedures, that contracts covered under the Agreement are clearly identified and that all available information relating to the particular contract is identified…
[67] See Christopher Bovis, ‘Electronic Public Procurement: A Mountain to Climb or Mission Impossible?’ 16th BILETA Annual Conference, 9–10 April 2001, University of Edinburgh, Scotland. On the WTO Agreement on Government Procurement, see: Australian Chamber of Commerce and Industry Review (1997) August; Reed, above n 3, 149.
[68] By establishing the Multimedia University.
[69] A regional information portal or gateway.
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