One piece of legislation which is meant to complement the National ICT Policy is the Electronic Communications and Electronic Commerce Draft Bill. This bill seeks to achieve a number of objectives that are associated with electronic communications and e-commerce.
Firstly, it seeks to promote the legal certainty and enforceability of electronic transactions and electronic commerce. Secondly, the draft Bill seeks to grant legal recognition to electronic communications and writing. Thirdly, the draft Bill is to provide for the legal effect of electronic signatures and secure electronic signatures.
The draft Bill makes provision for the admissibility of electronic evidence in hearings and court proceedings, this is important because current Zimbabwean law of evidence is silent on the submission of electronic evidence.
The Bill also seeks to protect consumers in the online environment, for example, by regulating electronic marketing practices. Finally, the draft Bill seeks to limit the liability of service providers, service providers refer to a person or party that makes information system services available.
Important distinctions in the bill
The draft Bill has a few interesting definitions. It defines “a consumer” as a natural person or non-profit organisation. Profit making organisations are not included in this rather narrow definition.
What does this exclusion mean for a profit-making organisation that buys goods from another organisation via an online transaction? Does it mean the organisation procuring goods does not receive any protection from this Bill?
This draft Bill is the first local statute to mention “e-government services”. E-government services refer to any public service provided by means of electronic communications by any public office. One example of an e-government service is when City Council sends residents their utility bills via e-mail.
E-governance greatly improves service delivery and offers faster and often cheaper ways of communicating. An “electronic transaction” means a transaction, action or set of actions of either a commercial or non-commercial nature, and includes the provision of information and/or e-government services.
In the Bill, an “electronic record” refers to anything stored in the form of a stored electronic communication. An electronic record may, therefore, be in the form of an SMS message, e-mail, or a message sent via an application such as WhatsApp or Facebook Messenger.
The Bill refers to “electronic signatures” which means data, including an electronic sound, adopted to identify a party in a unique way and to indicate that party’s approval or intention in respect of the information contained in the electronic communication.
If a law requires the signature of a person, an electronic signature is valid, provided the electronic signature complies with the requirements as prescribed by Regulation. The Bill lists instances when an electronic signature is not valid for example when signing a contract for the long-term lease of immovable property in excess of 10 years.
“Secure electronic signatures” are a more secure version of electronic signatures. Individuals and organisations can produce and use electronic signatures. However, the production and authentication of secure electronic signatures will be the responsibility of what the draft Bill calls “Certification Authorities”.
The Minister responsible for administering this Bill has the mandate to issue regulations and licensing requirements for these Certification Authorities. Besides prescribing the quality standards certification authorities have to maintain, the Minister is also responsible for defining when an authentication product qualifies as a secure electronic signature.
The Minister’s role will also include making regulations with respect to the technical requirements that an authentication product must meet, be it based on an asymmetric cryptosystem, biometrics or a combination of these or other authentication methods to qualify as secure electronic signatures.
I believe that the draft Bill gives the Minister too much control over the certification authorities. Furthermore, the Minister’s role, for example, defining what a secure electronic signature is, is highly technical. This is specialised knowledge that unfortunately may be over the head of the average Minister. To be able to carry out the
To be able to carry out the mandate given to him or her in this Bill, the Minister will probably outsource or hire people that have the relevant knowledge of the technicalities and procedures involved in the making and use of secure electronic signatures.
Electronic contracts, data messages will be recognised
Where a law requires information to be in writing, electronic communication will suffice if the information contained therein is accessible to be usable for subsequent reference. For example, it is a legal requirement that contracts are in writing. This Bill permits the formation of contracts through use of electronic communications.
This Bill makes it clear that a data message cannot be denied legal effect, validity, or enforceability solely on the ground that it is in the form of an electronic communication.
Some legal actions still need to be executed on good old pen and paper. For example, the conveyance of immovable property or a contract for the transfer of any interest in immovable property.
This may be an attempt to reduce the likelihood of using electronic communications as a means of committing fraud. The Bill does not force anyone to accept or use e-transactions; however, a person’s conduct may infer an agreement to use or accept electronic communications.
Regulation on e-commerce transactions
The e-commerce aspect of the draft Bill requires each supplier to display information about themselves and their range of products and services. After the conclusion of an electronic transaction, the supplier must give the buyer an opportunity to review the electronic transaction.
This allows the buyer to correct any mistakes, or to withdraw from the transaction completely. A supplier has 30 days to supply the goods bought. Where the supplier has failed to supply goods within this 30-day period, the buyer can give a written notice requesting the cancellation of the order and return of the money used.
The draft Bill also gives the buyer a 7-day cooling off period, during this cooling off period the buyer can return the goods that he or she bought online, back to the supplier and get his or her money back. This is an attempt to address buyer’s remorse. This cooling off does not apply to goods like foodstuffs or software. The buyer is responsible for paying shipping costs involved in returning the goods back to the supplier.
Unfortunately, the draft Bill is silent on the use or regulation of debit cards (Zimbabwe financial organisations currently do not issue credit cards). The bulk of e-commerce transactions are in the form of debit cards used at points of sale in both physical and online stores.
The draft Bill is also silent on the regulation of mobile money vendors. More and more Zimbabweans are transferring money and making payments through their mobile devices. The Bill does address online marketing and says that online marketers must give consumers the option to opt-out of receiving marketing messages.
Lastly, information services providers bear no civil liability in instances where there is that of being a mere conduit of information. The Bill states that service providers have no legal obligation to monitor the activities of their users. Fortunately, the Bill does give consumers the power to give take down notifications to service providers, for the takedown of material, the user may deem to be a violation of his or her rights.
After going through this draft Bill, I got the impression that the Bill tries to address far too many issues at once. As a result, the draft Bill does not adequately cover all the aspects of the topics that it touches on.
In my opinion, electronic communications is a wide enough field that is sometimes so technical that it really deserves its own in-depth Bill separate from e-commerce. As a result, e-commerce did not get the satisfactory attention that it deserves, in its current form the draft Bill leaves a number of unaddressed areas as far as e-commerce in Zimbabwe is concerned.
The fact that both electronic communications and e-commerce share a platform does not necessarily mean that they should be bundled together and dealt with as one entity.
This article was written by Kuda Hove, a legal and information officer who has a keen focus on Zimbabwean ICT legislation.