Maximizing the benefits of electronic commerce: the Uniform Electronic Commerce Act (part I).

• Author: Swais, Nishan

The advent of computer and other types of electronically-generated communications has introduced several issues into commercial law. For example, what constitutes the original of an electronically created document? Under what circumstances can information transmitted electronically -- say, by way of e-mail -- be said to be communicated in writing? What is legally required to sign an electronically created document? These are just some of the many questions facing businesses today as they follow the global trend towards non-paper-based communications.

In an attempt to help answer those questions and ensure that electronic communications can be undertaken in an atmosphere of certainty and reliability, the Uniform Law Conference of Canada prepared and recently adopted its Uniform Electronic Commerce Act. Designed around the principle that information should not be denied legal effect or enforceability "solely by reason that it is in electronic form", the Act (modelled on the United Nations Model Law on Electronic Commerce) is intended to form the basis of the first significant legislative step in removing barriers to electronic commerce.

In this column (and the one to follow), I wish to provide you with a brief introduction to some of the principles underlying the Act. The first matter to be addressed is the scope of the application of the Act.

Application of the Act

Three sets of guidelines establish the scope of the application of the Act.

Electronic

The first involves the definition of electronic. It is the central concept underlying the Act and is defined to refer to anything "... created, recorded, transmitted or stored in digital form or in other tangible form by electronic, magnetic or optical means or by any other means that has capabilities of creation, recording, transmission or storage similar to those means ..."

The definition is deliberately broad and inclusive and is intended to encompass new developments in technology. The only restriction is that anything described as electronic must be in "digital or other intangible form". Hence, paper documents do not fall within the scope of the application of the Act whereas computer generated or digitally-rendered documents do. By defining electronic in this manner, the goal, simply, is to have the Act apply to all types of electronic information or documents, subject to certain specific exclusions..

Specific Exclusions

The second set of guidelines establishing the scope of the...