MODEL LAW VIS-à-VIS ICT

							          CYBER LAWS WORKSHOP FOR
         EAC, 24-28 April 2006, Kampala.
             The Status of Cyber Laws in
                      Tanzania.

                   Presenter; ADAM MAMBI
             State Attorney (Head legal Research
             Dpt.), The Law Reform Commission of
                           Tanzania.


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Emerging issues that EAC need will to
  consider for the establishment and
      implementation Legal frame
framework for ICT and E-Government


• The impact of ICT on the Laws, economy and the
  Society.
• E-Commerce/E-government
• Barriers to the commercial exploitation of ICT (e.g.-
  Commerce)
• Cyber Crimes. Definition of Theft under digital era?


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• E-evidence, e-signatures/Evidential Status of
  electronic documents.
• Jurisdiction problem on cyber space
• Extradition treaties on cyber space
• Are we E-EAC or off-line-EAC?



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E-Commerce and the Status
 of Cyber Laws in Tanzania
• The technology has brought
  fundamental changes in the way
  commerce takes place The impact on
  the use (EDI)
• E-commerce is growing explosively




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    The Current Legal
    system in Tanzania
• Transactions that are paper based
  methods.
• The e-transactions hindered by legal
  obstacles( written documents manuscript
  signatures, authentication in transactions).
• Contracts to be made by deed in writing
  and evidenced using original documents



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• laws designed to facilitate paper-based
  transactions.
• Lack of Regulatory steps to secure e-
  transactions such as digital signatures, e-
  government
• Lack of e-dispute settlement mechanisms
• Should we apply 1800s Postal Rules on e-
  communications? [Adams v. Lindsale] 1818


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Exceptions to written, and
  signature requirements
• Contracts for licensing and
  assignments f copyright, creation of
  transfer in title deeds , Wills and
  trusts , negotiable instruments, and
  Bill of lading.




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    Some e-Laws recognizing
          exceptions
•   The UK CDPA 1988
•   The Law of Property Act 1989
•   Marine Insurance Act 1906
•   Consumer Credit Act 1974




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Jurisdictional Problem on
  Dispute settlement!
• Under cyber space with boundary less where
  things happen?
• When and where the contract is actually made?
• When communication of offer/acceptance is
  deemed to be effective forming a contract?
• Are we able to point out the time and the place
  where the contract is made electronically?


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• Do we still need to apply Postal rule?
• Which legal system will apply?
• Which court will have jurisdiction?
• Who are relevant law enforcers in cyber crimes?




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                   ADR vs ODR
 Laws govern ADR of-line {Arbitration Act, Civil Procedure Act)
  1967)
 Online Dispute Resolution (ODR) for cyberspace/Internet disputes
  and offline disputes is growing through Website Mediation and
  negotiation services (cyber mediation & negotiation).
 Using Sophiscated Software and a Neutral Third Party
 See http:/www.cybersettle.com, www.settlementonline.com and
  www.clicknsettle.com




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• How can we incorporate ODR /e-ADR in our e-
  government strategies and Laws?
• Do we have laws that recognize e-justice and
  cyber courts?




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 Off-line Auctions vis-à-
  vis On-line auctions
• Sale by auction is complete when the
  auctioneer announces its completion
  by the fall of the hammer
• With on-line-auction it is the time
  that matters.




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       Digital/Electronic
          Signatures:
•  E-Commerce has brought a revolution on a paper
  based signatures to digital or e-Signatures
• E-Signature means Data in electronic form in,
  affixed to or logically associated with, a data
  message.
• Laws in Tanzania do not recognize e-signatures




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• Identity and identification on the Internet
• Capacity to contracts (Minors not allowed)
• “On the Internet no body knows you are a dog"
  (Reed, Interne Law page 119):




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• Business Laws-contracts to be made
  or evidenced in a particular way
  namely:
• By deed, under seal and writing.
• be signed before a witness.
• Be evidenced with original documents


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• Retention of information in a manual
  filling system.
• Keeping written documents
• Barrier in implementing e-government




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    Suggested Solutions
• Enact/amend our laws in line with
  UNCITRAL and CMW Model Laws
  requirements for functional equivalence.
• Articles 6UNCM/7(CWL) (writing),
  7UNCM/9(CWL) (Signature),
  8UNCM/6CWL(Original),9UNCM/3(CWL)(
  Admissibility and evidential weight of data
  message/e-evidence) and 11 of UNCITRAL
  Model Law on E-Commerce 1996-1998


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• Article 6UNCM/9CWL(e-/digital
  Signature) and 12 of UNCITRAL Model
  Law on E-Signatures
• While other countries legislation which
  reflect UNCITRAL Model Laws some
  countries like Tanzania, Kenya and
  Tanzania have still off-line laws.
• Where are we?


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 Consumer protection Under distance
        Contracts and e-banking;
• There is a practical danger to
  consumers who buy goods or services
  on-line.
• Most Laws protect consumers on off-
  line business only.




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     E-PAYMENTS/E-
         Banking
• E-Banking.
• Most Banks and other financial
  institutions have introduced ATMs
  Cards and other related Cards.
Most laws regulating this area are
  not in tune to e-banking, calling for
  further reforms.


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• Is the use of credit/debit cards is safe, risk
  less?
• Negotiable instruments
• Are the definitions of bill of exchange and
  cheques affected by e-banking?
 Definition of Bills of Exchange
• “An unconditional order in writing, addressed by
  one person to another, signed by the person giving
  it….



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• An endorsement in order to be a
  negotiation must comply with the following
  conditions, namely-
• (a) it must be written on the bill itself and
  be signed by the indorser
• and the simple signature of the indorser
  on the bill, without additional words, is
  sufficient.



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     Taxation under e-
        commerce
• Impact of e-commerce on Taxation system
• Tax principles of source, residence and
  jurisdiction affected by e-commerce.
• Under digital technology digitized goods
  can be delivered electronically which pose
  a challenge on taxation system.
 How can we assist Tax collectors?
 Where and where taxes can be collected?


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 Issues to be considered
   under e-taxation!!!!
 Where a business is to be regarded as established for
  fiscal purposes?
 Where income is earned in one country by an individual
  resident or undertaking established in another country
  where taxes fall due to be paid.
 How can we avoid double taxation and prevent fiscal
  tax evasion?
 How can we reform our Tax laws to cope with e-
  developments?
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International harmonization
       on e-taxation
• OECD Model Tax Convention provides the
  basis for more than 1,500 bilateral
  treaties between states providing for tax
  arrangements regarding each other’s
  nation.
• Are we part of this Convention?
• How far is it useful?



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     THINK ABOUT THESE!
• E-commerce unleashed and unbowed? (Turban E.,
  Ecommerce 2002)

• What are the impact of internet on the way we
  live, work and think?
• The future has just happened!!!




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     Data Protection and
           Privacy
• Are we assured with security under our computer
  systems?
• Do we have any legal framework on database and data
  protection?.
• Can the personal data and confidential information flow
  freely.
 Balance between the right to privacy and public interest
 Can the data processing techniques pose threat to the
  rights and freedoms of individuals.


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 Intellectual Property Rights
   and Digital Technology
• Digital infringement of IP rights such
  as Copyright and domain names
  cybersquating
• Impact of ICT on IP Laws.
• E-Publishing and digital infringement
  of IP Rights. Software and web
  piracy


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      (ISPs &OSPs) liability on
             digitised services.
• The relevance of IP the New Media/ICT.
• Off-line IP Laws
• The Role of ISP on digital infringement of
  IPRs.
• ISPs and other on-line service providers
  can be secondarily held liable as
  facilitators for the infringement of
  copyrighted materials online.
•
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  MP3—Peer 2 Peer File
       Sharing.
• MP3 music files under e-
  commerce has great impact
  on Copyrighted work.
• MP3 is a file that stores
  compressed music file.




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• Do current Copyright reflect digital infringement of copyrighted
  works?.
• Are there digital infringement theories developed under
  NAPSTER Case?.
  Consider the US Digital Millennium Copyright Act.
• CDPA(UK) 1988




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 Internet Domain names
• Domain names are Web or Internet
  addresses used by web servers to identify
  each other on the Internet. ICANN
  responsible for administering Internet
  Domain names.
• Are we ruled or bound by California Laws?
• Do we have laws to regulate this area
  (cybersquating)?


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     Other jurisdictions
• The US has enacted the US Anti-cybersquating
  Consumer Protection Act (ACPA) for regulating
  Domain names. .
• Example of domain names disputes case of Prince
  Pl v. Prince Sportswear Group Inc[1998].
• The UK had also experienced the conflict on
  domain names in Pitman Training Ltd v.Nominet UK
  [1997)and Mark & Spenser plc v.One in a Million
  Ltd[1998] Dispute on multiple trademark holders
  Nissan Motor Co.v. Nissan Computer Corp.


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 Impact of ICT on Criminal Law;
    Cyber or Computer crime

• Computers technology has impacted
  criminal law in two main
ways.

 It can facilitate the commission of crimes such as fraud
  and theft
 created new range of activities/offences such as computer
  hacking and the development and distribution of computer
  viruses, unsolicited emails and hacking.


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Hacking unauthorized access to computer
               material
          .Threat by Hackers
• serious threat to the security of computer
  systems
• read or copy confidential information,
• erase or modify information or programs
• download programs or data, or add something,
• Steal money or direct the computer to have goods
  sent to him.




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See Re v. Levin [1997] QB 65.The
 applicant in St Petersburg to access to
 Citibank's computer system in New
 Jersey and transferred money. He was
 arrested in the UK and US sought
 extradition.




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Computer Viruses and time
         bomb;
• Creation or dissemination of computer
  viruses. Misconduct in computer field
• A virus will typically be transferred from
  one system to another through either
  disks or storage devices.




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Fraud and theft under digital
         technology

• Stealing money or property by means of a
  computer
• Using a computer to obtain dishonestly, including
  money and cheques or credit or services or to
  evade dishonestly some debt or liability.
• Obtaining property e.g. money by deception;
 Definition of Theft under the current Laws (permanently
  depriving some ones tangible property) . Does this cover theft
   using computers? e.g. intangible property rights?


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                 Spamming
• This unsolicited emails on the Internet
  normally sent by e-bussines trying to
  advertise and sell goods and services. This
  can block ISPs Services.
• A trespass to other IPRs. eg. trade marks
  and Domain names.
• In the US There has been more than 20
  cases.



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 Computer Pornography:
• Recording and transmission of images and texts
  on digital media different from paper or video
  tapes.
• Digitization, transmission, upload and download
  obscene sexual images and fantasies over the
  Internet.
• Children are more vulnerable on the impact of
  these obscene materials.
• Current Laws not effective in combating these
  crimes


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• Consider the following issues
• How can we control/regulate on-line transmission
  of obscene, indecent material and defamatory
  information?
• Who are the “new actors in the new Stage”?.
• Opt to intermediary liability?


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• Most laws do not accommodate
  cyber crimes.
• laws does not provide cyber crime
  offences such as computer frauds,
  theft, piracy and the prosecution
  thereof.



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 Reliability and admissibility
   of Computer Evidence.
• Most Current Evidence statues are
  derived from Common law using
  “BEST EVIDENCE RULE”.




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 In Tanzania The Evidence Act, 1967 does not
  provide room for the admissibility of
  computer/electronic Evidence.
 The best evidence under this law is the primary
  evidence which in most cases will be the written,
  and signed or authenticated documents.
.




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 The Role of the Judiciary in
          Tanzania
 The lacuna on the admissibility of
 electronic evidence was tested by
 the High Court of Tanzania
 (Commercial Division) in the case of
 Trust Bank Ltd. v. Le-marsh
 Enterprises Ltd., Joseph Mbui
 Magari, Lawrence Macharia(No.4 of
 2000 (Unreported)

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  What do we learn from
        this case
• Although the laws in Tanzania do not
  recognize computer evidence as original,
  the case has put paper based evidence and
  e-evidence in equal footing weight.
• The Judge urged that in the absence of
  e-laws (emphasis added) the court will find
  way of dispensing justice even in difficult
  circumstances of absence f legal guidance.


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 the question
  before Judge
  Nsekela was
 whether
 Computer/electron
 ic Evidence is
 admissible in our
 Courts under our
 Laws.


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         Impact of Court
            Decision:
• E-Evidence admissible under our
  courts.
• Departure from strict application of
  “BEST EVIDENCE RULE”




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  Integrity of computers
  and electronic records
          system.
• How can one proof the integrity of
  computers computer generated
  information and computer print-out.
• Can “the best rule” apply in electronic
  evidence?




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     Jurisdiction problem
• Which legal system will apply when dealing with cyber crimes?
• Which court will have jurisdiction?
• The cyberspace has no boundaries. A crime can be
  committed anywhere in the world. Which country has
  the right to arrest offenders and prosecute?
• Do we need Extradition treaties for all countries in the
  world?



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 GOVERNMENTS INITIATIVES THE LAW
  REFORM COMMISSION OF TANZANIA
  Response on the impact of ICT
• LRCT has undertaken a review and
  research on the e-commerce and
  Cyber crimes area and come up with
  the recommendation which will lead
  to the enactment of the laws that
  will regulate this fast growing area.



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 Proposed Draft Bills by The
  Law Reform Commission of
               Tanzania
Four Proposed Draft Bills based on
 Functional equivalence were prepared from
 the final Report on E-Commerce and Cyber
 and Computer related crimes.
The Final Report plus the proposed Draft
 Bills to be submitted to the Minister of
 Justice and Constitutional Affairs.

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 1. ELECTRONIC EVIDENCE BILL
Cross cutting issues addressed;
   – Recognition and admissibility of electronic
     records as evidence equivalent with the “best
     evidence rule”
   – Giving due evidential weight information in a
     form of data message.
   – Admissibility of e-Signatures
   – Burden of proving authenticity of e-records.
   – Presumption of integrity of e-records



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ELECTRONIC TRANSACTION AND
   COMMUNICATION BILL

Cross cutting issues addressed;
  – Writing requirement met by e-
    Information/data message
  – Handwritten signature satisfied by e-
    Signature
  – Production/retention of original
    documents satisfied by e-documents


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– Recognition of e-contracts & e-
  communications.
– Determination of time and place of
  sending and receiving e-communications
– Recognition of foreign e-Documents / e-
  Signatures




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– Notarisation, acknowledgement and
  certification met by e-Signatures,
  establishment of Authentication Authority on
  e-signatures etc
– e-Government service delivery – acceptance of
  electronic filing; application; payment; digital
  signatures; e-publication / e-Gazette; etc.
– Administration of country-code Top Level
  Domain



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• Establishment of Authentication Authority
• Accreditation Authority
• Authentication Service providers
• Establish register of Cryptography
  providers
• Establishment of domain name authority




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  CYBER AND COMPUTER RELATED
          CRIMES BILL

Cross cutting issues addressed;
   – Illegal access and interfering with computer
     systems
   – Use of illegal devices
   – Interfering with data and computer system
   – Publication of immoral & obscene materials (eg.
     obscenity, inciting hatred, harmful to children,
     etc.)



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– Production of computer viruses, worms,
  logic bombs, etc.
– Powers of authorised officers to search
  & seize computer systems/e-devices and
  access data
– Powers of authorised officers to
  prosecute cyber-crimes
– Cyber Inspectors and their powers


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   DATA AND PRIVACY PROTECTION
              BILL.

• Cross cutting issues addressed;
   – Collection, use, disclosure and retention of
     personal information
   – Limits on the use and disclosure of personal
     information
   – Storage and security for personal information
   – Retention and disposal of personal information




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– Principles of data protection and
  consumer rights
– Powers of Minister to make regulations
– Establishment of the Office of Data
  Protection and Privacy Commissioner




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General Exceptions on e-
      principles.
• Contracts for licensing and
  assignments f copyright, creation of
  transfer in title deeds , Wills and
  trusts created by wills, negotiable
  instruments, and Bill of lading.




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    Concluding Remarks
Having realized all cross cutting issues
 which seem to be barriers for e-
 commerce and e-government
 implementation, there is a need of
 having harmonized and uniform Legal
 framework on ICT within EAC.
Need for benchmarking from other
 countries with legal framework on ICT


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Consideration of UNCITRAL Model Laws
 and Commonwealth Model Laws on E-
 Commerce and E-Signatures
Lets make our law enforcers to be e-
 enforcers
Have e-courts




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                   The End
   Thank you for you Attention!!
•   Adam Mambi,
• State Attorney (Head Research Department),
• The law Reform Commission of Tanzania:
• Expert on Cyber Law/ICT Law, Intellectual
  Property Law, Competition Law and
  Environmental Law.
• Email: adammambi@yahoo.co.uk
• Mobile Phone: +255(0)741291302



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