[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Download] [Help]

Endnotes

^[1] [1999] 1 NZLR 403 and Dishonestly Procuring Valuable Benefits: NZLC R51 (Wellington 1998). The question was whether the crime of theft could be committed when funds were transferred electronically. The court held that such a transfer of funds was a chose in action not caught by the expression "capable of being stolen" in s 217 of the Crimes Act 1961. In September 1999 the Crimes Amendment Bill (No 6) had its first reading in Parliament. It is intended that the Bill will remove the problem highlighted in R v Wilkinson and Dishonestly Procuring Valuable Benefits as it removes the concept of "things capable of being stolen".

^[2] Computer Misuse: NZLC R54 (Wellington 1999).

^[3] Para 235.

^[4] Ministry of Commerce, November 1998.

^[5] The Steering Committee comprises representatives of the Ministry of Commerce, Ministry of Foreign Affairs and Trade, Law Commission, Ministry of Consumer Affairs, Department of Prime Minister and Cabinet, Inland Revenue Department and the Treasury.

^[6] Paras 332_341.

^[7] Paul Heath QC, of this Commission, represented New Zealand at the UNCITRAL Working Group in Vienna while David Goddard, Barrister, Wellington, represented New Zealand at the Hague Conference.

^[8] See Hon Justice Baragwanath "A Call for Joint Action to Make Changes in International and Domestic Law which are Critical to a Borderless World of Electronic Commerce" (address to APEC Conference, Kuala Lumpur, 21 October 1998); available at http://www.lawcom.govt.nz/speeches/apececom211098.htm.

^[9] Hon Justice Baragwanath, "Changes in International and Domestic Law which are Critical to a Borderless World of Electronic Commerce" (address to APEC Conference, Auckland, 6 September 1999); available at <http://www.lawcom.

govt.nz/speech_index.html>.

^[10] Generally, see chapter 14, Conflict of Laws.

^[11] See chapter 9, Electronic Signatures, para 152.

^[12] See chapter 3, Contract, paras 48_52.

^[13] See chapter 3, Contract, paras 59_60.

^[14] Article 8 goes beyond evidential issues: see chapter 8, Record Retention. See also our discussion of the Australian Electronic Transactions Bill on this topic, paras 130_132, 136_137.

^[15] See generally, chapter 7, Evidence.

^[16] Model Law, article 1, footnote **.

^[17] See chapter 6, Consumer Issues, para 114.

^[18] See chapters 2, The Need for Legislation and 6; para 34 and 107 and n 206.

^[19] See chapter 13, The Law of Torts.

^[20] See chapter 14, Conflict of Laws.

^[21] See chapter 9, Electronic Signatures.

^[22] See chapter 3, Contract, paras 48_52.

^[23] See chapter 15, Banking, paras 294_312.

^[24] See chapter 10, Security and Encryption, chapter 11, Privacy, chapter 15, Banking, chapter 16, Securities, chapter 17, Intellectual Property and chapter 18, Taxation.

^[25] See chapter 19, Conclusions, paras 332_342.

^[26] See chapter 12, Criminal Law, paras 185 and 195.

^[27] See chapter 13, The Law of Torts, para 235.

^[28] NZLC R54, paras 87_94.

^[29] Chapter 12, para 192.

^[30] Chapter 13, paras 240_270.

^[31] Page 142.

^[32] See pages xxii_xxiii and para 342.

^[33] ECom 1, para 1 (footnotes omitted).

^[34] ECom 1, para 5.

^[35] See chapter 2, The Need for Legislation, para 34.

^[36] Paras 24_33.

^[37] This comes into force on 1 November 1999. See also chapter 2, The Need for Legislation, para 28 and the Commission's report A New Interpretation Act: To Avoid "Prolixity and Tautology": NZLC R17 (Wellington, 1990) on which the new Act is based. See, in particular, para 408 of that report.

^[38] See ECom 1, paras 30_45 for a discussion of what the principles mean.

^[39] The principles are set out in full in the executive summary in this report: see para E2.

^[40] Electronic Commerce Expert Group Electronic Commerce: Building the Legal Framework (Australia, 1998) 4. The report can be found at http://www.law.gov.au/aghome/advisory/eceg.

^[41] See article 4 of the Model Law, paras E3, 10, 53, 62, 333 of this report and paras 44_45 of the Guide to Enactment (appendix B).

^[42] Ministry of Commerce, Electronic Commerce: The Freezer Ship of the 21st Century (Wellington, 1998) 8.

^[43] Above n 42.

^[44] Office of the Minister for Information Technology Electronic Commerce; Report to Government Strategy Committee (Wellington, 1998) para 2.1.

^[45] The Information Technology Policy Group of the Ministry of Commerce has established a website (www.ecommerce.govt.nz) which provides links to information on government activities aimed to assist the development of electronic commerce.

^[46] Dishonestly Procuring Valuable Benefits: NZLC R51 (Wellington, 1998) and Computer Misuse: NZLC R54 (Wellington, 1999).

^[47] NZLC R53 (Wellington, 1999) paras 147_151.

^[48] NZLC SP1 (Wellington, 1999) paras 103, 810 and 869.

^[49] See chapter 2, para 31.

^[50] See the Practice Note issued on 15 March 1999 by Rt Hon Spigelman CJ entitled Use of Technology in Civil Litigation (May 1999) 45 (2) NSWLR v_xi.

^[51] In "How to court the IT revolution" The Times, London, United Kingdom, 31 August 1999, 21, Richard Susskind discusses the reforms for electronic case management proposed in Lord Woolf's Access to Justice paper, for which Susskind was the IT adviser. In addition the Scottish Court Service has established a website at www.scotcourts.gov.uk containing listings of judges and court opinions which can be searched. The purpose of the website is to "... benefit the administration of justice [and] improve public access to the law" (Gailey and Sibbald, "Scottish Courts Online" Computers and Law 3 10(2) (June/ July 1999) 6).

^[52] The chairman of the Senate's special committee on the Year 2000 problem, Senator Robert Bennett, has recently suggested that rather than disbanding after the year 2000 problem has passed, the panel may shift its focus towards an examination of the risks that business and government computers face from electronic attacks and subterfuge by terrorists and hostile foreign powers "Y2K Panel Won't Quit at 2000" International Herald Tribune 15 September 1999 3.

^[53] Hon Justice Baragwanath "Changes in International and Domestic Law which are Critical to a Borderless World of Electronic Commerce: An Update" (paper presented to APEC/WTC Conference, Auckland, 6 September 1999) available at the Law Commission's website www.lawcom.govt.nz.

^[54] See chapter 12, Criminal Law.

^[55] Endorsed by the Ministers in Kuala Lumpur in 1998.

^[56] For a report on the Steering Group's meeting see Brown "APEC on ecommerce" LawTalk 524, 2 August 1999, 11_12.

^[57] See chapter 6, Consumer Issues, para 105.

^[58] See chapter 18, Taxation, para 331.

^[59] See chapter 9, Electronic Signatures, paras 152, 154_155, and appendix E which summarises overseas legislation in relation to electronic signatures.

^[60] See chapter 14, Conflict of Laws, paras 279_282.

^[61] Summary (No 21) of address by Dr Herrmann to UNCITRAL "Congress on Uniform Commercial Law in the 21st Century", as discussed in G Shapira "UNCITRAL and its Work _ Harmonisation and Unification of International Trade Law" [1992] NZLJ 309.

^[62] Above n 61, 314.

^[63] Above n 61, 314.

^[64] See chapter 5, Statutory Overlay, paras 79_102.

^[65] See chapter 9, Electronic Signatures, paras 139_155.

^[66] See chapter 7, Evidence, paras 115_121 and chapter 8, Record Retention, paras 122_138.

^[67] See chapter 5, Statutory Overlay, paras 79_102.

^[68] See chapter 5, Statutory Overlay, paras 79_102.

^[69] See chapter 4, Transportation Documents, paras 63_78.

^[70] See executive summary, para E2, for a full statement of this principle.

^[71] Electronic Commerce: The Freezer Ship of the 21st Century, 8; see also the Australian approach to which we referred in ECom 1, para 22.

^[72] For a discussion of this public policy factor in a different context see Cross-Border Insolvency: Should New Zealand adopt the UNCITRAL Model Law on Cross-Border Insolvency?: NZLC R52 (Wellington 1999), 2_4 and 112; see also P Millett Tracing the Proceeds of Fraud (1991) 107 LQR 71.

^[73] See n 65_69 above for appropriate references.

^[74] See chapter 5, Statutory Overlay, paras 79_102.

^[75] See chapter 4, Transportation Documents, paras 63_78.

^[76] See also A New Interpretation Act: To Avoid "Prolixity and Tautology": NZLC R17 (Wellington 1990) on which the Interpretation Act 1999 was based; in particular para 408.

^[77] NZLC R55 vol 1, chapter 20, Documentary evidence and evidence produced by machine, device or technical process: Evidence: Evidence Code and Commentary: NZLC R55 vol 2, ss 117_123 and c410_429.

^[78] See paras 122_138.

^[79] See paras 139_154.

^[80] see chapter 5, Statutory Overlay, paras 79_102.

^[81] See rr 44 and 206A High Court Rules 1985 and rr 43 and 233 District Courts Rules 1992. If a solicitor has not given notice that service can be effected by post or facsimile the solicitor cannot be compelled to receive service by those means: see Invercargill City Council v Hamlin (1994) 7 PRNZ 674 (CA).

^[82] See further, chapter 5, Statutory Overlay, paras 79_102.

^[83] See paras 79_102.

^[84] See Auctioneers Act 1928, s 2; see also chapter 5, Statutory Overlay, paras 79_102.

^[85] See rr 27 and 510 High Court Rules 1985 and rr 25 and 508 District Courts Rules 1992. Note also the requirement for an original signature in r 27 High Court Rules 1985 and r 25 District Court Rules 1992 respectively although the court can grant leave to file an affidavit in facsimile form: Hawkins v Young Hunter (1997) 10 PRNZ 453; 455.

^[86] See paras 66_73, 77_78.

^[87] Fair Trading Act 1986, s 2.

^[88] ECom 1, paras 55_64.

^[89] ECom 1, paras 65_74.

^[90] ECom 1, paras 75_77.

^[91] ECom 1, paras 78_81.

^[92] See generally, JF Burrows, J Finn and S Todd Law of Contract in New Zealand (8th ed), 1997 chapter 13.

^[93] Contracts formed with minors, depending upon the circumstances (ie age of the minor, marital status, nature of the contract), may be unenforceable. See Burrows, Finn and Todd (8th ed), 1997 441_450. See also Morrow & Benjamin Ltd v Whittington [1989] 3 NZLR 122 and Lip, "Minor's Civil Law Capacity to Contract on the Internet" submission to the Queensland Law Reform Commission available at www.jcu.edu.au. "Minor" is not defined by the Minors' Contracts Act 1969; full age is reached for all the purposes of the law of New Zealand at 20 years: Age of Majority Act 1970, s 4(1).

^[94] ECom 1, paras 65_67 (offer) and 68_74 (acceptance).

^[95] G Crowhen and S Grace "The Legal Implications of Doing Business Electronically: Business Application of the Law of Contract to E-Commerce", paper presented to Institute for International Research conference February 1999, 9.

^[96] ECom 1, paras 69 and 70. To those cases we would add the case of Henthorn v Fraser [1892] 2 ch 27.

^[97] See the discussion of when the postal acceptance rule applies in ECom 1, paras 70_74.

^[98] In ECom 1, although we did not expressly state that the "law is uncertain" we did so by implication when we said: "The first question is whether it is appropriate to classify acceptance of an offer using electronic communications as one which falls within the general ambit of an instantaneous communication ... If the communication was made by email the answer depends on whether the email user had direct and immediate access to the person to whom the email is sent or whether the email was sent through the electronic equivalent of the postal service, an internet service provider (ISP), which collected the mail. Users in the former category have a mode of communication which is close to instantaneous while those using an ISP may only communicate as quickly as their telephone access, service provider and personal inclination dictate": para 71 and subsequently, when discussing article 15 of the Model Law, article 15 "eliminates the confusion caused by the possible application of the postal acceptance rule by deeming messages to be received when they enter the addressee's designated information system: para 90.

^[99] ECom 1, para 74.

^[100] We use the word "debatable" because the postal acceptance rule may only apply to certain types of electronically generated messages depending upon whether the message is classified as instantaneous or not: see the discussion of this issue in ECom 1, paras 69_74.

^[101] For an explanation of the different rules that apply to international contracts for the sale of goods see ECom 1, paras 72_74.

^[102] ECom 1, para 74.

^[103] See ECom 1, para 48 and n 118.

^[104] ECom 1, paras 49_61.

^[105] ECom 1, Q31 and paras 75_77.

^[106] ECom 1, paras 100_111.

^[107] Property Law Act 1952, s 4; ECom 1, paras 100_105.

^[108] Property Law Act 1952, s 130; ECom 1, paras 106_107.

^[109] Contracts Enforcement Act 1956, s 2; ECom 1, paras 109_111.

^[110] ECom 1, paras 112_136; in particular we address the Sale of Goods (United Nations Convention) Act 1994, the Maritime Transport Act 1994, the Marine Insurance Act 1908 and the Carriage by Air Act 1967.

^[111] See chapter 5, Statutory Overlay and chapter 4, Transportation Documents.

^[112] See para 24 above; the barriers identified are writing, signature, original, service of documents, physical presence or attendance and negotiability.

^[113] See chapters 4, Transportation Documents; 5, Statutory Overlay; 7, Evidence; 8, Record Retention; and 9, Electronic Signatures.

^[114] Contracts Enforcement Act 1956, s 2(1).

^[115] See chapter 9, Electronic Signatures and particularly para 149 and, for a discussion of the Interpretation Act 1999, para 5, 28 and 80_81.

^[116] The law of estoppel and the law of part performance may also prevent a party from avoiding a contract for land or guarantees entered into by electronic means. See NZLC PP30, paras 7_9.

^[117] NZLC PP30, para 41; See also DF Dugdale "Formal Requirements: the Proposed Repeal of the New Zealand Contracts Enforcement Act 1956" (1998) 13 Journal of Contract Law 268.

^[118] See paras 40_41.

^[119] ECom 1, Summary of Questions, Q5 and xvi.

^[120] ECom 1, paras 94_99.

^[121] Electronic Commerce Expert Group Report Electronic Commerce: Building the Legal Framework, paras 4.5.63_4.5.79.

^[122] Electronic Transactions Bill, cl 15(2).

^[123] Guide to Enactment, para 83.

^[124] Guide to Enactment, para 83.

^[125] Guide to Enactment, para 84.

^[126] Electronic Transactions Bill, cl 15(2).

^[127] See chapter 9, Electronic Signatures.

^[128] See in general chapter 14, Conflict of Laws. See also "NOIE deputy chief to head up new National Electronic Authentication Council" 6(13) Electronic Commerce Report 4.

^[129] ECom 1, paras 90_93.

^[130] The most recent draft of the Auckland District Law Society/Real Estate Institute of New Zealand agreement for sale and purchase of land contains a good example of how the default rule might be displaced by agreement to the contrary. In that draft (eg cl 1.2(3)(d)) provision has been made for receipt of email to be proved by reference to the time at which it is acknowledged by the party or by the solicitor orally or by return email or otherwise in writing. We note that the reference to "in writing" may require reevaluation having regard to the enactment of s 29 of the Interpretation Act 1999.

^[131] Model Law, article 15(2)(a).

^[132] Model Law, article 15(2)(b).

^[133] See paras 40_41.

^[134] See para 39.

^[135] ECom 1, para 91.

^[136] Model Law, article 15(4)(a).

^[137] See generally chapter 14, Conflict of Laws and ECom 1, chapter 6.

^[138] See rule 219 of the High Court Rules and rule 242 of the District Courts Rules.

^[139] The Explanatory Memorandum to the Australian Bill (http://law.gov.au/ecommerce/interim3.html) when discussing cl 14 states: "Clause 14 is largely based upon Article 15 of the UNCITRAL Model Law". See also, s 15 of the Electronic Transactions Act 1998 (Singapore).

^[140] R Hill "The Internet, Electronic Commerce and Dispute Resolution: Comments" Journal of International Arbitration, 103 he states: "Arsic notes that the question of the time at which contracts are formed by electronic data interchange (EDI) remains unsettled. This is true and the matter has been studied for years. However, despite its interest to legal theorists, the matter does not appear to be of much practical significance. Indeed, EDI contracts are usually governed by an EDI Trading Agreement, formed by conventional means, and the question of the time of formation has not given rise to any known disputes" (footnotes omitted).

^[141] Submission of the Ministry of Commerce and the Ministry of Consumer Affairs, 7, para 22.

^[142] Submission of Telecom New Zealand Ltd, para 9.

^[143] Submission of Information Technology Association of New Zealand 10.

^[144] Guide to Enactment, para 93.

^[145] Above n para 144.

^[146] Electronic Commerce Expert Group Electronic Commerce: Building the Legal Framework paras 4.5.80_4.5.83 and recommendation 13.

^[147] Above n 146, para 4.5.83.

^[148] Such as those contained in the seventh draft of the Auckland District Law Society/Real Estate Institute of New Zealand Agreement for Sale and Purchase, cl 1.2(3)(d) see n 130 above.

^[149] An example of this lack of trust is given by the Ministry of Commerce: "... consumers are willing to give their credit card numbers to complete strangers when completing a purchase by telephone, yet hesitate to send their credit card details over the Internet to a well established Web based vendor such as Amazon.Com.Secure": Electronic Commerce: The Freezer Ship of the 21st Century 18.

^[150] An example of being "disadvantaged" would be an Internet Service Provider being exposed to greater liability than its real world counterpart.

^[151] (Australia 1998) 4.

^[152] See paras 44_45 of the Guide to Enactment.

^[153] See para 46 of the Guide to Enactment.

^[154] See paras 46.1_46.7 of the Guide to Enactment.

^[155] See further, Guide to Enactment, paras 108_122.

^[156] Mercantile Law Amendment Act 1922, s 3(1). "`Received for shipment' bills of lading" is defined to mean a shipping document issued in accordance with s 3(1), signed by a person purporting to be authorised to sign the same, and acknowledging that the goods to which the document relates have been received for Shipment: Mercantile Law Amendment Act 1922, s 3(1).

^[157] ECom 1, para 125.

^[158] See para 28.

^[159] This view should be compared with paras 115_117 of the Guide to Enactment which refer to a "guarantee of singularity". In para 117 the UNCITRAL Secretariat noted that the term "unique" may lend itself to misinterpretation but, having considered the risk of misinterpretation, noted that the Commission had decided to "retain the reference to the concepts of uniqueness of the data message and uniqueness of the transfer for the purposes of Article 17, in view of the fact that notions of `uniqueness' or `singularity' of transport documents were not unknown to practitioners of transport law and users of transport documents ... It was decided, however, that this Guide should clarify that the words `a reliable method is used to render such data message or messages unique' should be interpreted as referring to the use of a reliable method to secure that data messages purporting to convey any right or obligation of a person might not be used by, or on behalf of, that person inconsistently with any other data messages by which the right or obligation was conveyed by or on behalf of that person".

^[160] R Howland "UNCITRAL Model Law on Electronic Commerce" (1997) 32(6) European Transport Law 703, 707. Mr Howland was one of the United Kingdom delegates to UNCITRAL at the time of approval of the Model Law.

^[161] A/54/17, 53_54, para 412.

^[162] ECom 1, para 121. See also para 77 of this report.

^[163] Interpretation Act 1999, s 29.

^[164] ECom 1, paras 124_125.

^[165] This lack of enthusiasm for a statutory register was evident in responses made to Q6 of ECom 1; see also ECom 1, 47, where the question was posed whether special legislation was necessary to facilitate the use of electronic bills of lading.

^[166] See paras 67_68.

^[167] Signature requirements are not an issue as the signature of a carrier may be stamped and that of the consignor may be printed or stamped: G Crowhen and S Grace "The Legal Implications of Doing Business Electronically: Business Application of the Law of Contract to E-Commerce" (Institute for International Research Conference, Wellington, 24_25 February 1999) 22, para 4.8.30.

^[168] Our reference to the Montreal Protocol No 3 in ECom 1, paras 132_133 was in error. In para 132 of ECom 1 what is set out is actually Montreal Protocol no 4.

^[169] Civil Aviation Amendment Act 1999 Commencement Order 1999 (SR 1999/280).

^[170] Report of the Transport and Environment Committee (no 245_2) ii.

^[171] ECom 1, para 121 and P Myburgh "Bits, Bytes and Bills of Lading: EDI and New Zealand Maritime Law" [1993] NZLJ 324.

^[172] ECom 1, para 126.

^[173] Mercantile Law Act 1908, s 13(5).

^[174] See para 72.

^[175] See para 69.

^[176] Above para 24.

^[177] See chapter 9, Electronic Signatures, paras 153_155, chapter 7, Evidence, paras 117_121, chapter 8, Record Retention, paras 123_137, and chapter 4, Transportation Documents, paras 65_73 respectively.

^[178] A New Interpretation Act: To Avoid "Prolixity and Tautology": NZLC R 17; see in particular, para 408.

^[179] See chapter 9, Electronic Signatures, paras 153_155.

^[180] It is hoped that the inclusion of the term will increase public confidence in the legal status of electronic communications. See above paras 61_62.

^[181] For example s 20 Credit Contracts Act 1981.

^[182] "Registered post" is defined in the Immigration Act 1987 s 2 as including "any service that provides a system of recorded delivery and is similar in nature to the registered post service provided by New Zealand Post". Other statutes which require notice to be given by registered post include the Tax Administration Act 1994 ss 136_137 and the Unit Titles Act 1972 s 38.

^[183] The Laws of New Zealand: Consumer Credit and Hire Purchase (Butterworths, Wellington, 1992) vol 7, paras 41_49.

^[184] High Court Rules r 5; District Court Rules r 5.

^[185] See para 88.

^[186] Above n 182.

^[187] Above para 86.

^[188] Above para 60.

^[189] Ministry of Commerce (1999) 52.

^[190] We refer in particular to a submission dated 20 August 1999 from ASB Bank Limited which referred to the disclosure requirements of the Credit Contracts Act 1981 causing difficulties to the bank through inability to meet customer demand for presentation of such material in an electronic form. While we can see good reason to ensure that the use of electronic media is not foisted upon those who do not wish to use it for this purpose, we can see no reason to prevent service by email where it is clear that there is customer consent and, indeed, demand for it. We note that in the United States the Federal Reserve Board has issued an interim ruling that allows banks to send customers electronic statements with prior approval. The relevant press release (dated 31 August 1999) can be read at http://www.bog.frb.fed.us/boarddocs/press/BoardActs/1999/19990901/. Furthermore we note that those provisions of the Securities Act 1978 which require documents to be sent to investors do permit communication by "electronic or other means that enables the recipient to readily store the matter in a permanent and legible form" (s 2).

^[191] This would necessitate an amendment to both the High Court Rules 1985 and the District Court Rules: compare n 85.

^[192] See above n 85.

^[193] Auctioneers Act 1928 s 30; Motor Vehicle Dealers Act 1975 s 55.

^[194] Motor Vehicles Dealers Act 1975 s 54(2) as amended by the Motor Vehicle Dealers Amendment Act 1999 s 8(1) and SR 1999/260/2. "New motor vehicle business" is defined in section 2 as "such part of the business of a motor vehicle dealer as consists of the business of purchasing, selling, exchanging, or leasing of new motor vehicles (whether as principal or agent); and includes the purchase or acceptance of a trade-in in connection with the purchase of a new motor vehicle".

^[195] See "Web no site for Arthur Daley" The New Zealand Herald, 5 May 1999.

^[196] It has been described as having "a style of control and supervision that is now unfashionable" and has arguably outlived its usefulness (The Laws of New Zealand: Auction, vol 1, para 1).

^[197] The term "online" has been defined as "enjoying a network connection to another computer". See C Gringas The Laws of the Internet (Butterworths, London, 1997) 385.

^[198] See R Abeyratne "Auctions on the Internet of Airline Tickets" (1999) 4(1) Communications Law 22.

^[199] The full definition reads: "Sales by auction" or "sell by auction" means the selling of property of any kind, or any interest or supposed interest in any property, by outcry, by the auctioneer saying "I'll take" and commencing at a higher figure and going to a lower figure, by what is known as Dutch auction, knocking-down of hammer, candle, lot, parcel, instrument, machine, or any other mode whereby the highest, the lowest, or any bidder is the purchaser, or whereby the first person who claims the property submitted for sale at a certain price named by the person acting as auctioneer is the purchaser, or where there is a competition for the purchase of any property or any interest therein in any way commonly known and understood to be by way of auction; and shall be deemed to include the selling of any property by outcry in any public place, as the same is defined in the [Summary Offences Act 1981], or in any room, or mart, or place to which the public are admitted or have access, whether or not the sale of the goods has been advertised to take place. (emphasis added)

^[200] Unreported (26 January 1993) High Court Wellington, CP735/92, 5 and 10.

^[201] Resolution 2205 (XXI) of 17 December 1966.

^[202] ECom 1, para 3.

^[203] In ECom 1, para 3 we referred to the OECD's Draft Recommendation Concerning Guidelines for Consumer Protection in the Context of Electronic Commerce which was due to be concluded in October 1998. The Guidelines cover issues of concern to consumers including privacy (see further chapter 11 Privacy), and the application of consumer protection across borders (see further chapter 14 Conflict of Laws).

^[204] Guide to Enactment, para 27.

^[205] Guide to Enactment, para 27.

^[206] See appendix C and the comments in para 5 regarding limiting proposed legislation to electronic transactions conducted "in trade".

^[207] Letter from Ministry of Consumer Affairs to Law Commission dated 9 August 1999.

^[208] Above n 207.

^[209] Chapter 5, Statutory Overlay, paras 82_93.

^[210] Above para 92.

^[211] Above para 92.

^[212] See chapter 8, Record Retention, paras 133_135.

^[213] See chapter 15, Banking, paras 294_312.

^[214] Model Law, article 1, n **.

^[215] Generally, The Laws of New Zealand: Consumer Protection (Butterworths, Wellington, 1992) vol 7, para 1.

^[216] (1998) 21(2) UNSWLJ 334, 347_348.

^[217] We dealt with this issue in chapter 5, Statutory Overlay, para 92.

^[218] Section 68A(3) provides:

(3) In determining for the purposes of subsection (2) whether or not reliance on a term of a contract is fair or reasonable, a court shall have regard to all the circumstances of the case and in particular to the following matters:
(a) the strength of the bargaining positions of the corporation and the person to whom the goods or services were supplied (in this subsection referred to as "the buyer") relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;
(b) whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;
(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); and
(d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.

^[219] Evidence NZLC R55 vol 1, para 6.

^[220] Evidence Law: Documentary Evidence and Judicial Notice: NZLC PP22 (Wellington, 1994).

^[221] ECom 1, paras 193_200 generally.

^[222] [1996] 4 All ER 239 (CA) 254.

^[223] ECom 1, para 238.

^[224] Evidence NZLC R55 vol 2.

^[225] Evidence NZLC R55 vol 1, paras 513 and 514.

^[226] See paras 62_71 (inclusive) of the Guide to Enactment. For ease of reference we set out in appendix B to this report the Model Law with the Guide to Enactment produced by the Secretariat of UNCITRAL. In appendix D we have reproduced those provisions of the Evidence Code recommended by this Commission in its August 1999 report.

^[227] See chapter 8, Record Retention, para 136.

^[228] In this chapter we have limited our discussion to how statutory requirements for record keeping can be met electronically. However, we note that businesses create and store records electronically for much wider reasons: "The e-commerce revolution is causing the amount of data to explode, and people are looking for control of both the data, in a management sense, and also access to the information ... in a performance sense" (S Burke of IBM in A Wells "IBM's shark set to look into data management" in Infotech Weekly, 1 August 1999, 7).

^[229] See discussion in chapter 7, Evidence.

^[230] See also articles 4(1) and 6(1).

^[231] See also, Companies Act 1993 s 363, copies or extracts from registered documents must be certified by the Registrar of Companies. Similar provisions abound in the Building Societies Act 1965 s 129, Customs and Excise Act 1996 ss 164_166, Designs Act 1953 s 32, Energy Resources Levy Act 1976 s 33, Goods and Services Tax Act 1985 s 30, Land Transfer Act 1952 s 45, Life Insurance Act 1908 s 27, Tax Administration Act 1994 ss 110 and 118, and the Trade Marks Act 1953 s 69.

^[232] ECom 1, para 391.

^[233] Generally, see Companies Act 1993, s 87, Goods and Services Tax Act 1985, s 75 and Land Transfer Act 1952, s 33.

^[234] New Zealand Law Society submission, 15 February 1999, 9.

^[235] Public Record Office, Victoria, Australia 1998.

^[236] ECom 1, para 196.

^[237] Guide to Enactment, para 62.

^[238] Available at http://www.law.gov.au/ecommerce/.

^[239] For example, Companies Act 1993, s 190.

^[240] See para 132. An example of a requirement to produce information from a New Zealand statute is s 206(1)(b) (not yet in force) of the Fisheries Act 1996 which gives powers to Fisheries Officers to require information to be reproduced in a useable form.

^[241] See paras 124_125.

^[242] See chapter 9, Electronic Signatures, paras 153_155.

^[243] See ECom 1, chapter 7.

^[244] Generally, see ECom 1, paras 316_320 and 344_345.

^[245] GCSB submission, 24 November 1998.

^[246] New Zealand Post submitted that the State can play a useful role in the facilitation of electronic signature technology by enacting legislation, by becoming a supportive user of market driven techniques for electronic signature use, by becoming a user in a market driven infrastructure should one arise, and by being an advocate for the use of electronic signatures generally: New Zealand Post Limited submission, 17 December 1998.

^[247] See Draft Uniform Rules on Electronic Signatures, Note by the Secretariat, Working Paper 79; Electronic Signatures, Note by the Secretariat, Working Paper 80 and Draft Uniform Rules on Electronic Signatures, Note by the Secretariat, Working Paper 82 (the Working Papers are available at UNCITRAL's website: www.uncitral.org).

^[248] Available at www.eu.or.at/uncitral/english/sessions/unc/unc-32/acn9-457.htm.

^[249] Because of publication deadlines this report was prepared prior to that session.

^[250] For a definition of the public key infrastructure see ECom 1, paras 322_323.

^[251] One of the issues which will need to be addressed by UNCITRAL is the purpose of the proposed uniform rules. At present those uniform rules address party autonomy, the nature of the obligations which should be imposed on a person who holds a signature device, the person to whom such obligations should be owed and the obligations of the certification authorities.

^[252] See paras 140 and 149_150.

^[253] For example deeds which are required to be witnessed by a person who adds his or her name, address and occupation: Property Law Act 1952 s 5.

^[254] See ECom 1, chapter 7, Electronic Signatures, paras 322_324.

^[255] ECom 1, paras 349_352.

^[256] Available from the OECD website: http://www.oecd.org//dsti/sti/it/secur/prod/e-crypto.htm.

^[257] See in particular Criminal Investigations (Blood Samples) Act 1995 s 54(2).

^[258] Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovak Republic, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom and United States.

^[259] See www.wassenaar.org to read the text of the Arrangement.

^[260] See comments by J Higgins in K Griggs "Cold War protocol risks e-commerce" National Business Review 12 February 1999, 6.

^[261] Ministry of Foreign Affairs and Trade New Zealand's Controls on the Export of Strategic Goods (Wellington, November 1996) 2.

^[262] Above n 260.

^[263] Hon Justice Michael Kirby "Privacy in Cyberspace" (1998) 21(2) UNSW Law Journal 323, 325.

^[264] Office of the Privacy Commissioner "Privacy Protection: The Key to Electronic Commerce", seminar delivered at Asia -Pacific Economic Cooperation Conference, Auckland, 27_28 June 1999, 1_4.

^[265] The Privacy Act 1998 (Commonwealth) is the primary piece of domestic legislation relevant to information privacy protection in Australia. The Privacy Act confers on individuals enforceable rights in respect of their "personal information" (defined in section 6(1)) against Commonwealth government departments and agencies. It has however recently been reported that the Australian government will be enacting new laws on information privacy which will also cover the private sector (see Electronic Commerce Report, 25 January 1999, 3). Canada has privacy legislation at the commonwealth level. The Privacy Act (chapter P-21) applies to government institutions and provides a number of rules in relation to the collection, retention and disposal of personal information. On 26 October 1999 the Personal Information, Protection and Electronic Documents Bill was passed by the Canadian House of Commons, and was due to receive its second reading in the Senate at the time of publication of this report. The Bill applies to every "organisation" in respect of "personal information" collected, used or disclosed by the organisation in the course of commercial activities (s 4). "Organisation" is defined as including an association, a partnership, a person and a trade union and "personal information" is defined as meaning information about an identifiable individual (s 2). The Bill requires every organisation to comply with the obligations set out in schedule 1 (s 5). Schedule 1 sets out the protection of personal information principles.

^[266] Available at http://www.privacy.org/pi/intl_orgs/ec/final_EU_Data_

Protection.html.

^[267] See n 264.

^[268] Office of the Privacy Commissioner "Review of the Privacy Act: A background paper" August 1998; Stewart "Information Security _ Privacy Law and Issues" (1997) 2 HRLP 225.

^[269] Privacy Act 1993 s6.

^[270] See para 170.

^[271] See para 168.

^[272] See para 169.

^[273] See n 264, 3.

^[274] Office of the Privacy Commissioner Necessary and Desirable: Privacy Act 1993 Review: Report of the Privacy Commissioner (November 1998).

^[275] See para 274, para 5.3 and recommendation 61.

^[276] See para 274, recommendation 35(a).

^[277] See para 274, para 1.4.71 and Evidence: Reform of the Law: NZLC R55 vol 1 para 512_514; Evidence: Evidence Code and Commentary: NZLC R55 vol 2 s 4, c13.

^[278] Gringas The Laws of the Internet (Butterworths, London, 1997) 380.

^[279] Computer Misuse NZLC R54, para 26.

^[280] D Denning Information Warfare and Security (ACM Press, New York, 1999) 56.

^[281] Computer Misuse NZLC R54, para 2.

^[282] ECom 1, para 5.

^[283] Above n 282.

^[284] Computer Misuse NZLC R54, para 1.

^[285] Computer Misuse NZLC R54, para 28.

^[286] See Computer Misuse NZLC R54 para 3 where these reports are discussed.

^[287] See Computer Misuse NZLC R54 appendix A where this legislation is reproduced.

^[288] See chapter 13, the Law of Torts, paras 197_270.

^[289] Computer Misuse, preface, ix.

^[290] [1999] 1 NZLR 403 CA; see Dishonestly Procuring Valuable Benefits: NZLC R51 (Wellington 1998).

^[291] See para 191.

^[292] See para 189.

^[293] The words "data" and "computer" are intended to have the meanings assigned to them in paras 14 and 15 of Computer Misuse.

^[294] See Computer Misuse para 13.

^[295] In the report of the Crimes Consultative Committee on the Crimes Bill 1989 it is recommended that there should be an offence for access simpliciter. The Committee stated:

[unauthorised access simpliciter] ... may in fact have quite serious effects. Hacking may force owners of computer systems who become aware of a hacker's activities to engage in expensive and time-consuming efforts to check the extent of any intrusion and whether damage has been done.
The Committee considers that criminal liability for simple unauthorised access would be appropriate provided the maximum penalty is set at a much lower level than for the offences in clauses 200 and 201. The Crimes Act should be reserved for serious offences. We suggest the location elsewhere of a summary offence dealing with unauthorised access, punishable by a maximum of six months imprisonment. (Crimes Consultative Committee, Crimes Bill 1989, Report of the Crimes Consultative Committee (April 1991) 77)

Taking into account the recommendations of the Crimes Consultative Committee and the fact that the prosecution does not need to establish an intention to cause loss or gain a benefit, we agree that the penalty for the fifth offence should be less than the penalty for the other computer misuse offences. We are, however, satisfied that the maximum penalty recommended by the Crimes Consultative Committee in 1991 is inadequate for today's purposes. There have been massive developments in computer technology and use since the Crimes Consultative Committee reported almost a decade ago. The potential for harm, and the consequent need for deterrence, has increased. We therefore recommend that the offence of intentionally and without authority gaining access to data stored in a computer should be located in the Crimes Act 1961 and should have a maximum penalty of three years imprisonment.

^[296] In New South Wales a computer hacker recently appealed his three year sentence on the basis that the sentence was excessive. The New South Wales Court of Criminal Appeal dismissed the appeal on the basis that computer crime is a fast growing offence and offenders should expect substantial sentences (see (1999) 73 ALJ 394).

^[297] See chapter 13, paras 197_270.

^[298] ECom 1, paras 138_146.

^[299] ECom 1, paras 147_157.

^[300] ECom 1, paras 158_166.

^[301] ECom 1, paras 167_185.

^[302] ECom 1, paras 186_190.

^[303] The only question posed in ECom 1 was:

Are there any policy reasons for limiting the boundaries of tortious liability incurred from the use of electronic communication networks, having regard to the problems of defining "neighbourhood" in an electronic environment?

ECom 1, paras 191 and 192; submissions were sought in the context of the "floodgates principle" as a mechanism of limiting the boundaries of the law of tort.

^[304] ECom 1, para 192.

^[305] Not one submission received supported restriction of the tort of negligence through statutory intervention. Many submitters expressly endorsed the approach to the tort of negligence which has been developed in New Zealand; ie as based on the decision of the House of Lords in Anns v Merton London Borough Council [1978] AC 728; see also ECom 1, para 168.

^[306] See chapter 12, Criminal Law, and Computer Misuse: NZLC R54 (Wellington, 1999).

^[307] B Fitzgerald "Computer Software: Sales, Licences and Consumer Protection" (in the 1999 Fay, Richwhite Conference, Auckland, 1999) 5_6.

^[308] Computer Misuse: NZLC R54 (Wellington, 1999) para 35.

^[309] Computer Misuse: NZLC R54 (Wellington, 1999) paras 21 and 36.

^[310] Computer Misuse: NZLC R54 (Wellington, 1999) para 36.

^[311] Department of Foreign Affairs and Trade Putting Australia on the New Silk Road (Canberra, 1997) 12.

^[312] ECom 1, paras 375_379.

^[313] ECom 1, para 379.

^[314] ECom 1, paras 375_378.

^[315] As opposed to a consumer who has been confused by the association.

^[316] ECom 1, paras 147_157.

^[317] See NBA v Motorola Inc 105 F3d 841 (2d Cir 1997) and M O'Rourke "Fencing Cyberspace: Drawing Borders in a Virtual World" (1998) 82(3) Minnesota Law Review 609, 697_701.

^[318] Wellington Newspapers Limited v Dealers Guide Limited [1984] 2 NZLR 66.

^[319] Burrows, Finn and Todd Law of Contract in New Zealand (8 ed, Butterworths, Wellington, 1997) 325_333.

^[320] Above n 319, 31 and 734 et seq and discussion of this tort at paras 221_227.

^[321] A Brown and A Grant The Law of Intellectual Property in New Zealand (Butterworths, Wellington, 1989) ch 3 and Neumegen v Neumegen & Co [1998] 3 NZLR 310.

^[322] S Todd (ed) The Law of Torts in New Zealand (2 ed, Wellington, Brooker's, 1997) ch 12 and subsequent discussion of this tort paras 217_220.

^[323] Butterworths New Zealand Law Dictionary (Butterworths, Wellington, 1995). See also ICF Spry The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (5 ed, LBC Information Services, 1997).

^[324] See Goldsbro v Walker [1993] 1 NZLR 394 (CA). Section 9 of the Fair Trading Act 1986 provides: "No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".

^[325] L Clarke Confidentiality and the Law (Lloyd's of London Press Ltd, London, 1990) xxii_xxiii.

^[326] Boardman v Phipps [1967] 2 AC 46, (HL) 127 per Lord Upjohn.

^[327] For example, in the Hong Kong case of Linda Chih Ling Koo, John Ho Hung Chiu v Lam Tai Hing CA Civ App No 116 of 1992, on appeal from HCA No A3466 of 1986, 14 April 1992, 23 IPR 607 (cited in E Loh, "Intellectual Property: Breach of Confidence?" (1995) 178 EIPR 405 at 405) Bokhary J stated: "A man's confidential information is his property. The courts have jurisdiction to protect such property from misuse. Such jurisdiction is not confined to cases in which such information has been imparted in confidence or to cases in which an obligation to keep the same confidential arises under contract. Any use, including self-use by the wrongdoer by force, menaces, trickery or stealth _ is ... misuse which is liable to be restrained or made the subject of an order for damages or an account". See also F Gurry, Breach of Confidence (Clarendon Press, Oxford, 1984) who views the existence of a proprietary right in confidential information as having only a very tenuous foothold; 406 in particular.

^[328] This report does not purport to examine the merits of such development.

^[329] [1978] Qd R 72 See ECom 1, para 163. See also the discussion of Franklin in Clarke, above n 325, ch 4 (Breach of Confidence and Privacy) and 5 (Information as Property).

^[330] Above n 329, 80. See also Boardman v Phipps [1967] 2 AC 46; Exchange Telegraph v Gregory [1896] 1 QB 147; and Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408.

^[331] [1979] VR 167, 193 cited in Clarke, above n 325, 106.

^[332] In Clarke, above n 325, 132.

^[333] [1979] ch 344. See ECom 1, paras 165_166.

^[334] Above n 333, 376.

^[335] See ECom 1, para 162, where the words used in the Law Commission report (para 4.10) are quoted in full.

^[336] [1984] 1 NZLR 354. A recent example of this tort being invoked is the case of Dickson Livestock Associates Ltd v Wrightson Ltd (28 April 1999) unreported, High Court Wellington, CP No 225/97; Goddard and Neazor JJ.

^[337] [1984] 1 NZLR 354, 358_359.

^[338] [1983] 2 All ER 189.

^[339] [1984] 1 NZLR 354, 359.

^[340] Above n 337, 359.

^[341] Above n 337, 360.

^[342] Above n 337, 360.

^[343] Burrows, Finn and Todd Law of Contract in New Zealand (8 ed, Butterworths, Wellington, 1997) 22.

^[344] Above n 343.

^[345] Above n 343, compare Burrows, Finn and Todd Law of Contract in New Zealand (8 ed, Butterworths, Wellington, 1992) chapter 21.

^[346] Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 71, 197.

^[347] Above n 343, 23.

^[348] G Fitzgerald and L Gamertsfelder "Protecting Informational Products (Including Databases) Through Unjust Enrichment Law: An Australian Perspective" [1998] EIPR 244, 248.

^[349] See generally: Fitzgerald and Gamertsfelder, above n 348.

^[350] Above n 348, 248.

^[351] Above n 348, 255.

^[352] Computer Misuse: NZLC R54 (Wellington, 1999) paras 21 and 36. See also RG Hammond "The Misappropriation of Commercial Information in the Computer Age" (1986) 64 Canadian Bar Review 342 where the difficulty of defining information as a property right is discussed.

^[353] Assuming an adequate definition of "property" could be stated, there is the added difficulty of determining who created the property: how do you deal with numerous authors producing information?

^[354] G Evans and B Fitzgerald "Information Transactions Under UCC article 2B: The Ascendancy of Freedom of Contract in the Digital Millennium?" (1998) 21(2) UNSW Law Journal 404, 427 (footnotes omitted).

^[355] See para 230.

^[356] See para 225.

^[357] (17 June 1999) unreported, High Court, Hamilton CP 72/98, 18_25. In Powerbeat Hammond J was faced with a set of facts which involved the execution of a search warrant against a premises owned by a company engaged in high technology processes. It was alleged that the search warrant was executed illegally or unreasonably and a cause of action was brought against the Attorney-General based on Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 (CA).

^[358] Above n 357, 23.

^[359] R Balkin and J Davis Law of Torts (Butterworths, Sydney, 1991) 7.

^[360] Christopher Nicoll, Senior Lecturer in Commercial Law, University of Auckland.

^[361] [1999] IJIL 293.

^[362] See ECom 1, para 178, and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants Limited and Henderson v Merretts Syndicates Limited [1995] 2 AC 145.

^[363] L Longdin "Digital Transmissions and the Liability of On-Line Service Providers" (paper presented to the Fay, Richwhite Conference, Auckland, 15_16 July 1999) 13 (footnotes omitted). More generally, the discussion of ISPs' liability draws heavily on the content of the Longdin article.

^[364] See the United States decision of MAI Systems Corporation v Peak Computer Inc 991 F2d 511 (9th Cir 1993) where it was held that caching amounted to reproduction of a copyrighted program. See also chapter 11, paras 178_179.

^[365] Longdin, above n 363, 15_17.

^[366] C Counts and A Martin "Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier" (1996) 59 Alb L Rev 1083. Other commentators prefer to divide travellers into groups that specify the nature of the use, for example, Longdin sets out the following ISP taxonomy for online intermediaries: common carriers or mere conduits; internet access providers; online hosts; information location tool providers and cyber-café proprietors (Longdin, above n 363, 12_15).

^[367] See Longdin, above n 363, 46 where the conditions are set out.

^[368] P Niehaus "Cyberlibel: Workable Liability Standards?" [1996] U Chi Legal F 617, 619.

^[369] Above n 368, 619_620.

^[370] Above n 368, 621.

^[371] 776 F Supp 135 (SDNY 1991).

^[372] Above n 371, 140. ECom 1, paras 189_190. See also A Fitzgerald et al (eds) Going Digital: Legal Issues for Electronic Commerce, Multimedia and the Internet (Prospect Media, St Leonard, NSW, 1998) 156_157.

^[373] Above n 372, 157.

^[374] 23 Media L Rep (BNA) 1794 (NY Sup Ct May 24, 1995). See ECom 1, para 189.

^[375] D Vick, L Macpherson and S Cooper "Universities, Defamation and the Internet" (1999) 62 The Modern Law Review 58, 64_65. Prodigy developed content guidelines and removed material that it believed would be harmful to the online community as well as using automatic pre-screening software and monitoring _ in real time _ the BBS using an emergency delete function to purge undesired messages: Counts and Martin, above n 366, 1097.

^[376] 23 Media L Rep (BNA) 1794 at 1798 cited by Counts and Martin, above n 366, 1097.

^[377] See Niehaus, above n 368, 628.

^[378] Above n 368, 629.

^[379] The refusal may be either when there is a request to link prior to the act of linking, which is turned down, or a notification after linking that the link should be removed (and to fail to do so would then constitute a trespass).

^[380] See generally Niehaus, above n 368.

^[381] Longdin, above n 363 put it thus: "Certainly [monitoring or packet sniffing technology] may catch obscene or objectionable material by detecting the transmission of particular key words, terms or expressions but it is of dubious effectiveness in tracking defamatory statements or breaches of copyright or moral rights where much can depend on nuance and the juxtaposition of material". (18) "Packet sniffing" is "intercepting, analysing or recording communication packets (fixed size blocks of data which are transmitted over a communications channel) without altering the intercepted packets. The tools to accomplish this are freely available on the Internet": NZLC R54 (Wellington, 1999) para 18.

^[382] Longdin, above n 363, 17.

^[383] Above n 363, 18.

^[384] See Niehaus, above n 368, 624_625.

^[385] Longdin, above n 363, 18.

^[386] Counts and Martin, above n 366, 1099_1103.

^[387] 244 P2d 757 (Cal Dist Ct App 1952).

^[388] Above n 387, 758.

^[389] Above n 387, 758.

^[390] E-Commerce Business Policy "Main Guiding Principles" (unpublished, 1998) available at http://www.ec.gov.sg/Sum3_08Apr98.html.

^[391] Commission of the European Communities "Proposal for a European Parliament and Council Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market" COM (1998) 586 final 98/0325 (COD) unpublished (Brussels, 18 November 1998) 12. Copy available from the Law Commission on request.

^[392] Above n 391, 12.

^[393] Above n 391, 12_13.

^[394] See paras 252_253.

^[395] See para 269.

^[396] Vick, Macpherson and Cooper, above n 375, 58 and footnote 2.

^[397] ECom 1, para 187.

^[398] At common law, the innocent dissemination defence was developed because it was perceived to be unreasonable to expect libraries, newsagents, and booksellers to screen the contents of every publication they distributed.

^[399] ECom 1, n 74.

^[400] [1999] 4 All ER 342.

^[401] Section 1 of the Defamation Act 1996 (UK) has been described as a "modern equivalent of the common law defence of innocent dissemination": per Lord Mackay LC Hansard, 2 April 1996, Col 214 Defamation Bill (HL) cited in Godfrey v Demon Internet Ltd, above n 400.

^[402] Vick, Macpherson and Cooper, above n 375, 77

^[403] See para 249.

^[404] See ECom 1, n 74.

^[405] ECom 1, para 254.

^[406] For a discussion of the unsatisfactory state of New Zealand's conflict of laws rules, and the need for multilateral reform, see D Goddard "Global Disputes _ jurisdiction, interim relief and enforcement of judgments" (paper presented to New Zealand Law Conference, Rotorua, April 1999).

^[407] E Longworth Possibilities of a Legal Framework for Cyberspace _ Including a New Zealand Perspective (GP Publications, Wellington, 1999) 35 citing D Menthe "Jurisdiction in Cyberspace: A Theory of International Spaces" (1998) 4 Mich Tel Tech L Rev 3.

^[408] ECom 1, paras 289 and 296.

^[409] ECom 1, paras 290 and 297.

^[410] Joint submission of the Ministry of Commerce and the Ministry of Consumer Affairs, para 13.

^[411] Submission of the Commercial and Business Law Committee of the New Zealand Law Society, 5.

^[412] Submission of Telecom New Zealand Ltd, para 8.

^[413] Submission of Mark Perry and Laurette Barnard, 3.

^[414] The Hague Conference on private international law is an intergovernmental organisation the purpose of which is "to work for the progressive unification of the rules of private international law" (Statute, article 1). The principal method used to achieve the purpose of the Conference is the negotiation and drafting of multilateral treaties or conventions in the different fields of private international law (international judicial and administrative cooperation; conflict of laws for contracts, torts, maintenance obligations, status and protection of children, relations between spouses, wills and estates or trusts; recognition of companies; jurisdiction and enforcement of foreign judgments). After preparatory research has been done by the Secretariat (the Permanent Bureau of the Hague Conference), preliminary drafts of the conventions are drawn up by the Special Commissions made up of governmental experts. The drafts are then discussed and adopted at a Plenary Session of the Hague Conference, which is a diplomatic conference. For further information in relation to the Hague Conference, and its current work, see its website at http://www.hcch.net.

^[415] Longworth, above n 407, 36.

^[416] The current members of the Hague Conference on Private International Law are: Argentina; Australia; Austria; Belgium; Canada; Chile; China; Croatia; Cyprus; Czech Republic; Denmark; Egypt; Estonia; Finland; Former Yugoslav Republic of Macedonia; France; Germany; Greece; Hungary; Ireland; Israel; Italy; Japan; Republic of Korea; Latvia; Luxembourg; Malta; Mexico; Monaco; Morocco; Netherlands; Norway; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Suriname; Sweden; Switzerland; Turkey; United Kingdom; United States of America; Uruguay; Venezuela.

^[417] See para E5.

^[418] Refer to discussion in chapter 2, The Need for Legislation, paras 28 and 30 regarding the definitions of "writing" and "signature" respectively.

^[419] This view is supported in S Welling and A Rickman "Cyberlaundering: The Risks, The Responses" (1998) 50(2) Fla L Rev 295.

^[420] This problem was cited as a reason for establishing a "National Office on the Information Economy" in The Independent, 7 July 1999, 23.

^[421] See "Multiple Currencies for Exporters" NZ Infotech Weekly, The Dominion, 26 April 1999, 1.

^[422] See "Young NZ Retailers blocked from Net Payment Service" NZ Infotech Weekly, The Dominion, 2 August 1999, 3.

^[423] New Zealand leads the world in EFTPOS penetration, with one terminal per 63 people. In 1993 cheques constituted 54 percent of all transactions, by 1997 this had fallen to 27 percent in favour of electronic transactions (New Zealand Official Yearbook 1998, 559).

^[424] ECom 1, paras 354_360.

^[425] Section 24(1) of the Bills of Exchange Act 1908. In relation to collecting banks see section 5 of the Cheques Act 1960.

^[426] This contrasts starkly with the banks' approach to customer liability in respect of transactions effected using PIN numbers, discussed in paras 305_312.

^[427] R Brownsword and G Howells "When Surfers Start to Shop: Internet Commerce and Contract Law" (1999) 19 Legal Studies 287_315.

^[428] [1971] 2 QB 163

^[429] [1996] 3 All ER 545

^[430] This United Kingdom statute renders certain types of clauses totally ineffective and subjects others to a test of reasonableness. There is no exact legislative equivalent in New Zealand.

^[431] Above n 427.

^[432] Annual Report 1997/1998 Office of the Banking Ombudsman 22_23.

^[433] Above n 423, 36_37.

^[434] (1999) 6 NZBLC 102, 833, 99_474.

^[435] See n 434, 102, 842. The proceeding in respect of the Fair Trading Act 1986 action was transferred to the District Court, as the Master dismissed the defendant bank's application for summary judgment against the plaintiff in respect of this cause of action. The case is yet to be heard in the District Court (102, 843).

^[436] Similar problems arise regarding the responsibilities of the holder of an electronic signature to safeguard that signature from unauthorised use, which were discussed at the 35th session of the UNCITRAL Working Group on Electronic Commerce held in September 1999. The Working Group's report is available from www.uncitral.org. See discussion of draft article 9, paras 99_108.

^[437] This section of the Banking chapter draws considerably on the writing of Professor Mark Sneddon, Special Counsel Electronic Commerce, Clayton Utz and Associate Professor of Law, University of Melbourne. In particular see "Risk Allocation in Electronic Banking: Lessons for Electronic Commerce", paper delivered at the New Zealand Law Society Conference, 1999.

^[438] Above n 437, 39.

^[439] Above n 432, 5.

^[440] Above n 432, 11.

^[441] Above n 437, 7.

^[442] Available at www.asic.gov.au.

^[443] Para E3 and para 10.

^[444] See ECom 1, paras 382_383.

^[445] [1993] 3 NZLR 135

^[446] Above n 445, 140.

^[447] Currently exemptions have been granted in respect of Australian equity offers and unit trusts, other overseas companies listed on approved exchanges, and certain overseas companies undergoing restructuring and amalgamation.

^[448] Information obtained from the New Zealand Stock Exchange Fact Book 1998, available at www.nzsc.co.nz, and "NZSE FASTER system operational" (1999) 499 LawTalk 6.

^[449] See further "If you want to get ahead, get online: investors embrace Internet trading" The Independent, 14 July 1999, 24.

^[450] See ECom 1, paras 365_381.

^[451] Details confirmed by the Ministry of Commerce in correspondence dated 17 June 1999.

^[452] Leading cases include Oggi Advertising Ltd v McKenzie & Ors [1999] 1 NZLR 631 (discussed in ECom 1, para 368) and New Zealand Post Ltd v Leng (1998) 8 TCLR 502.

^[453] See ECom 1, paras 384_390.

^[454] Details confirmed in correspondence with the Inland Revenue Department dated 18 June 1999.

^[455] Available at http://www.ird.govt.nz/resource/taxaint/index.htm, 10 August 1999.

^[456] Inland Revenue Department, Wellington, March 1999.