19 Conclusions

THE ELECTRONIC TRANSACTIONS ACT

332 WE RECOMMEND that New Zealand enact an Electronic Transactions Act to remove the immediate barriers to electronic commerce (paras E4–E5, E12, 5, 7–8 and 23; and see generally the Model Law and the Australian Bill).

333 We recommend that the Electronic Transactions Act contain:

equivalents to articles 4 (Party Autonomy), 5 (Non-Discrimination) and 5 bis (Incorporation by Reference) of the Model Law (see paragraph 62; paragraph 38 ECom 1; paragraphs 44–44-7 Guide to Enactment; Australian Bill, section 8).
an equivalent to article 7 of the Model Law (Electronic Signatures) (see paragraphs 139–155; paragraphs 309–345 ECom 1; paragraphs 53–61 Guide to Enactment; Australian Bill, section 10);
equivalents to clauses 11 (Production of Documents) and 12 (Retention of Documents) of the Australian Bill (see paragraphs 130–137; paragraphs 391–395 ECom 1; articles 8, 9 and 10 of the Model Law; paragraphs 62–69 and 72–75 Guide to Enactment).
an equivalent to article 15 (Time and Place of Dispatch and Receipt of Data Messages) of the Model Law (see paragraphs 53–58; paragraphs 73, 90–93 ECom 1; paragraphs 100–109 Guide to Enactment; Australian Bill, section 14).
a provision detailing that Internet Service Providers (ISPs) have no liability unless:

– they have actual knowledge of the existence of information on the website which would be actionable at civil law or constitute a criminal offence; and
– the ISP fails to remove promptly any offending information of which it has knowledge; and
– that ISPs will not liable for reposting of information by a third party that has been previously removed unless it obtains actual knowledge of such a reposting and fails to remove it promptly (see paragraph 260; chapter 4 ECom 1).

334 We further recommend that equivalents to clauses 11 and 12 of the Australian Bill, if enacted, are subject to the provisions of the proposed Evidence Code (see paragraphs 136–137 and 20; clause 13 Australian Bill; Evidence: the Reform of the Law: NZLC R55 paragraphs 513–514).

335 We recommend that the Electronic Transactions Act and the proposed Evidence Code be enacted at the same time so that any immediate barriers to electronic commerce can be removed (see paragraphs 121–137).

336 We recommend that the Electronic Transactions Act not include:

an equivalent of article 9 of the Model Law, as the admissibility of electronic documents is covered by the Evidence Code contained in NZLC R55 Volume 2, sections 117–123, which we are recommending be implemented through enactment of the Evidence Code;
an equivalent of article 13 of the Model Law. We propose to revisit the desirability of enacting article 13 in our third report (see paragraphs 48–52; paragraphs 62, 94–99 ECom 1; paragraphs 83–92 Guide to Enactment);
an equivalent of article 14 of the Model Law for the reasons given in paragraphs 59–60; paragraphs 93–99 Guide to Enactment;
equivalents of articles 16 and 17 of the Model Law for the reasons given at paragraph 77 and chapter 4; paragraphs 100–136 ECom 1; paragraphs 108–122 Guide to Enactment.

337 We recommend that the Electronic Transactions Act applies to:

electronic transactions conducted “in trade” (see paragraphs E8, 5, 34, 107; paragraphs 24–29 Guide to Enactment).
consumer transactions (see paragraphs 108–114; paragraph 3 ECom 1; paragraphs 27 and 29 Guide to Enactment; Australian Bill, section 5 definition of “transaction” and sections 8(3) and (4) which provide for exemptions by regulation for specified transactions).

MATTERS FOR OUR THIRD REPORT

338 We recommend that New Zealand continues to be represented at the UNCITRAL Working Group on Electronic Commerce. The possible adoption of Uniform Rules on Electronic Signatures arising out of that work will be considered in our third report (see paragraphs 147–155).

339 We recommend that New Zealand continues to be represented at the Hague Conference on Private International Law. The merits of adopting outcomes from the Hague Conference will be considered in our third report (see paragraphs 279–283).

OTHER RECOMMENDATIONS

340 We recommend:

that a systematic review of all commercial legislation be undertaken by the government departments responsible for administering them, to ensure that the barriers to electronic commerce identified in chapter 5 (Statutory Overlay) are removed where appropriate (see paragraphs 92 and 101–102).
that the definition of “distributor” in section 2(1) of the Defamation Act 1992 includes reference to an ISP (see paragraphs 264–270). Internet Service Providers should then be defined in a separate definition to include providers of the services discussed in paragraph 242.
that the Reserve Bank should undertake review of the Financial Transactions Reporting Act 1996 in the near future to ensure fraudulent and other illegal activities involving electronic money are within the scope of that Act (see paragraphs 286–289 chapter 15 Banking).
in relation to the delivery or services of notices and other documents, that such delivery or service take place electronically only where there has been prior consent on the part of the consumer in the manner stipulated in paragraphs 88–89, 93 and 110.
that the Evidence Code be enacted contemporaneously with the proposed Electronic Transactions Act (see paragraphs 121 and 137).
that the amendments to the Privacy Act 1993 recommended by the Privacy Commissioner be adopted (see paragraphs 175–177).
that the four offences recommended in the Computer Misuse report be enacted. We also recommend that a fifth computer misuse offence be created; namely, intentionally and without authority gaining access to data stored in a computer. We recommend that this offence should have a maximum penalty of three years imprisonment. (See paragraphs 180–195 and Computer Misuse (NZLC R54 (1999)).
that New Zealand monitors further international developments in respect of electronic transportation documents before making a final determination on whether legislation is necessary to implement articles 16 and 17 of the Model Law (see paragraph 77).

341 We defer for consideration in discrete reports:

the possible abolition of the postal acceptance rule (see paragraphs 40–41);
the merits of repealing the Contracts Enforcement Act (see paragraphs 46–47).

FURTHER SUBMISSIONS

342 We seek further submissions on the following matters which will be addressed in our third report:

In relation to the allocation of liability for unauthorised electronic banking transactions (both credit card and EFT transactions):

– is the existing allocation set out in the Code of Banking Practice appropriate?;
– if not, what are the bases for justifying legislative action to cure any problems? (See paragraphs 304 and 312.)

In relation to the privacy issues raised by caching:

– are there any practical problems and issues in the application of the existing law;
– if so, do those problems arise in relation to collection, holding or giving access; and
– if a law change is warranted, how that amendment might be framed? (See paragraphs 178 and 179.)

In general on whether legislation is required to allow the use of electronic transportation documents (paragraph 78 and chapter 4 generally).
We are of the view that there is not, as yet, a demonstrable need for legislative intervention to provide greater protection against the misuse of information. However, as there may be a demonstrable need in the near future for added protection, we seek further submissions on

– are the existing statutory, common law and equitable actions sufficient to meet the needs of those involved in electronic commerce?
– if not, should information be redefined as property?; or
– should we codify the law of unjust enrichment; or
– should a statutory tort be introduced which would give the owner of a computer system a right of action against a person where that person had breached criminal legislation dealing with computer misuse and, as a result, caused loss or obtained benefit?; and, if so,
– will the New Zealand insurance market provide adequate and cost effective cover for electronic commerce risks for businesses operating in electronic commerce?
– what other options are suggested to deal with the issues raised? (See paragraphs 201–238.)

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/R58/R58-19.html