rajesh sreenivasan [email protected] 14 december 2004 legal framework for...

Rajesh [email protected]

14 December 2004

Legal Framework for Legal Framework for e-Development:e-Development:Best Practices and Lessons Best Practices and Lessons LearnedLearnedSingapore and EAPSingapore and EAP

Copyright © Rajah & Tann 2004

• Infocomm regulation in Singapore• Policies relating to ICT• Content regulation• Dispute Resolution• EAP• Lessons

Outline


Electronic Transactions Act• Came into force on 10 July, 1998• Organisation of the Act

– 12 Parts• Part I: definitions• Parts II, V and VI: recognition of electronic

transactions, electronic records and electronic signatures

• Part III: liability of network service providers• Part IV: commercial code• Parts VII to X, XII: public key infrastructure• Part XI: government use of electronic records and

signatures

Role of the Electronic Transactions Act


• Computer Misuse Act 1993• Evidence Act• Criminal Procedure Code

Regulatory regimes• MAS guidelines

– Internet banking– Risk management– Money laundering

Computer Crime Singapore Legislation


Singapore’s Info-communications technology (ICT) sector

• Converged regulator – Infocommunications Development Authority of Singapore (IDA)– Brought together the oversight of IT, e-

commerce and telecommunications under a single agency

– Regulatory and promotional functions under same roof

– Intended to allow a single agency to best achieve balance of interests

Infocomm regulation in Singapore


IT, e-commerce and telecoms: different approaches in policy needed

• Telecoms evolved from a national monopoly.– Introduction of new players and breaking up of the

monopoly. – Move away from intervention and restriction full

liberalisation – Now regulatory concerns with managing the

electromagnetic frequency spectrum as a scarce source, overseeing competition, imposing controls to prevent unfair competition.

– Still inhibitive in nature, reactive and responds to actions of market players



• IT and e-commerce sectors evolved from opposite direction – 1980s – no clear dominance – Emergence of Microsoft – effect on competition – Explosive growth of internet– This dynamic environment with minimal regulatory

intervention permitted company like Microsoft to grow from literal non-existence to position of dominance.

– Different regulatory perspective than for telecoms sector.

– No issue of scarcity.– Main concerns – remove regulatory barriers that impede

industry growth, clarify ambiguities in current laws and policies, create certainty in rules. Voluntary codes often used.

– Regime tends to be enabling and proactive.



• Converged regulator– Potential danger that agency is not adequately

equipped to understand nuances and significance of different underlying policy objectives and approaches needed

– May result in overly conservative stance– Yet, ICT sector requires increasingly hands-off

approach – Also possible problem of inappropriate

regulation



• External influences on policy making– WTO

• TRIPS and effect on IPR regime

– FTAsLikely to shift the balance point.

• Foreign players pushing for Singapore’s policies and regimes to become more open and conducive for the entry of foreign competition.



• Policies of government– Stimulate growth in the ICT sector– Address broad policy concerns such as fair

competition, appropriate content and consumer protection

– Provide needed foundation and certainty

Policies relating to ICT


• Telecoms Services Policy – Telecomm Competition Code

• Establishes framework and principles regarding competition• Duties of operators to end users• Cooperation amongst operators to promote competition• Interconnection with dominant operators and infrastructure

sharing• Requirement for dominant operators to provide Reference

Interconnection Offer (RIO)

• Significant – filled in gap created by absence of competition law in Singapore – Recognises that presence of dominant operators

reduces effectiveness of relying entirely on market forces

Policies relating to Telecoms


• Compared to telecoms, cross-agency content policy issues not addressed with same expediency and boldness

• Promotion/restriction of content• Emphasis on

– ability of industry to control content in creates (IPR issues)

– Address business and consumer confidence issues (protection of consumer interests, security and payment services)

– Manage information and data (data protection issues)– Deliver experience of seamless access to content

(standards and interoperability issues)

Content Policy


• Online content– Based on societal norms for acceptable content– Limitless boundaries of the internet – may not

always be appropriate to impose our local standard

– The Media Development Authority (MDA) • created to focus on and develop the media industry. • formed by the merger of the Singapore Broadcasting

Authority, the Films and Publications Department, and the Singapore Film Commission (SFC), on 1 Jan 2003.

• The setting up of MDA is in response to the convergence of different media that requires a consistent approach in developing and managing the different forms of media.

Content Policy


• Online content– The Media Development Authority (MDA) – Content management allows for information to

benefit the user and society. • public can access a wide choice of information. • young are safeguarded from undesirable materials. • light-touch approach towards regulation

– Different media are guided by different codes and guidelines

• shaped by community standards. • constantly updated in consultation with the citizen

consultative bodies

Content Policy


Online dispute resolution - e@dr• Initiative by the Singapore Subordinate courts• Allows parties in e-commerce transaction to

resolve their dispute through the Internet• Low-cost alternative to consumers and

businesses for dispute resolution without requiring an action to be commenced in court

• Types of disputes:• Sale of goods or provision of services• Disputes on IPR• Domain names

– www.e-adr.gov.sg

Dispute Resolution

East Asia Pacific RegionE-commerce and E-signature Laws

EAP Region – Development Contrasts

• Countries of the EAP region, compared to the rest of the world, represent greatest contrasts:– Contrast between some of the richest and the poorest

countries (South Korea with USD 10,013 GDP per capita X Myanmar with USD 175 GDP per capita).

– Contrast between continent-sized and small island nations (China with 1,284.9 million inhabitants and the land area of 9.6 million km2 X Palau with 20,300 inhabitants and the land area of 458 km2).

– Contrast between the highest and the lowest levels of ICT structure development (South Korea with 56% PC penetration X Cambodia with 0.2% PC penetration).

E-commerce• Specific laws addressing E-commerce

have been enacted in the Philippines, Thailand, South Korea, Myanmar and Vanuatu.

• Specific laws addressing E-commerce have been already drafted but not yet enacted in Cambodia, Indonesia, Malaysia and Vietnam.

E-commerce (cont.)•Common Features of the enacted E-commerce laws– Primarily based on the UNCITRAL Model Law on E-

commerce 1996– Applicable to business and consumer transactions– Legal recognition of e-documents and e-contracts– Satisfaction of writing requirement by electronic

form– Rules governing timing of dispatch/receipt,

acknowledgement of receipt, attribution and retention of e-messages

– Binding actions of electronic agent

E-commerce (cont.) Thailand Philippine

sVanuatu

South Korea

Myanmar

Applicability to the Government

Yes Yes No Yes Yes

Variation by the parties

Yes Yes No Yes Yes

Varying levels of legal recognition

No No No No No

Cross border recognition

No Yes No No Yes

Expression of Intention

Yes Yes Yes Yes No

E-signature• Specific laws addressing E-signature

have been enacted only in Malaysia, the Philippines, Thailand, South Korea, Myanmar and Vanuatu.

• Specific laws addressing E-signature have been already drafted but not yet enacted in Cambodia, Indonesia, Vietnam and China.

E-signature (cont.)• Common features of the specified

enacted E-signature laws– Based on the UNCITRAL Model Law on E-

Signature 2001– Provide for:

• legal recognition of e-signatures• satisfaction of handwritten signature

requirement by the electronic form– Do NOT provide for:

• national interoperability of e-signatures• international interoperability of e-signatures

E-signature (cont.)Malaysia Thailan

dPhilippines

Vanuatu

South Korea

Myanmar

Distinction of types

No No Yes No No No

Technology neutral

No Yes Yes Yes No Yes

Admissibility as evidence

Yes No Yes Yes Yes No

Cross border recognition

No Yes Yes No No No

Lessons• ICT Laws must provide certainty to

ICT industry – not act as barriers• Consider and define role of regulator

when putting in place legislation• Avoid laws that cannot be effectively

enforced (e.g. Content regulation)• Be aware of convergence issues• Draft laws that are not technology

dependent

Thank you


rajesh sreenivasan [email protected] 14 december 2004 legal framework for...

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