INTERNATIONAL LAW ISSUES RELATING TO ELECTRONIC COMMERCE

ÏThe law of International Trade can loosely be divided into 3 general areas. First, the general rules of Public International Law governing the economic relations of states.ð This law, which is derived both from general principles and treaty law, sets the framework within which states may legislate and under which International Trade is conducted.ð Second, the Law of Contracts by which persons, companies and state trading enterprises, order their trading relationship.ð Third, the laws governing the Importation and Exportation of goods to and from Canada÷.Ó[1]

ððððððððððð Electronic Commerce and particularly that carried on over the Internet is in itself global. The actions in regulating by any one of the domestic states will have very little impact unless they are a part of a larger international setting. This paper will first outline the governance of international trade relations, its institutions, backgrounds and partners. This paper will then look at diverse agreements, action plans, model laws and guides that have been prepared by international organizations.ð The organizations have various mandates and interests in promoting electronic commerce, and providing solutions to the problems that the average businessperson may encounter in dealing in this new medium.ð Some of these problems have been identified in this paper.

ððððððððððð ðThe paper then surveys electronic commerce policy, laws and initiatives that are happening or have happened at the domestic level. The purpose is to see how consistent the domestic scene is with the member states' international endeavors.

ððððððððððð ðThe final section deals with specific Internet commerce concerns raised by the international legal community, in areas of taxation, privacy, access, culture and consumer protection.

THE GOVERNANCE OF INTERNATIONAL TRADE RELATIONS, ITS INSTITUTIONS, BACKGROUNDS AND PARTNERS

THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT)

ððððððððððð The General Agreement on Tariffs and Trade (GATT) is a multilateral treaty that aims to promote trade among its members.ð Originally signed by Canada and 22 other countries in 1947, the Uruguay round of the GATT now has 140 [2] contracting parties composed of both developing and developed states.ð The first GATT treaty was entered into on a temporary basis in 1948, as it was expected to be superseded by the International Trade Organizations (ITO Havana Charter 1948).ð The ITO failed to find support when the US Senate did not ratify the treaty in 1953.ð The principles of Înon-discriminationÌ and ÎtransparencyÌ are central to GATT, which was taken in part from the Havana Charter.

NON-DISCRIMINATION

ðð ðððððððð Non-discrimination is reflected in the Most Favored Nation clause (ÏMFNÓ)[3], which in essence says that a party granting a trade advantage/favor to one country is required to give that same advantage to all contracting parties.ð The Second portion of non-discrimination is National Treatment (ÏNTÓ), which means that imported goods are to be treated as if they were domestic products and any form of discrimination against them in favor of like national products, is prohibited.[4] Transparency, another principle of GATT, means that trade measures should be made known to other contracting parties so that they may be assured that the system of multilateral trade rules is in fact operating.ðð All laws, regulations, and tariffs of member countries should be published and open.ð The GATT attempts to lessen the use of import quotas and other laws restricting the flow of goods among the contracting parties.ð The GATT provides more favorable treatment for developing countries, and puts obligations on countries to provide technical assistance to lesser-developed countries.ð In 1995, an international organization was finally created with a new oversight body called the World Trade Organization (WTO). In 1996, the Uruguay Round of Negotiations talks to expand GATT were finally concluded and formally signed. The GATT is now the WTOÌs principle rule-book for trade in goods. The Uruguay round also created new rules for dealing with trade in services, intellectual property and dispute settlement. The complete set of rules consists of about 60 separate agreements and commitments or schedules made by various nation states relating to lowering of tariffs and services. Through these agreements, WTO members operate a non-discriminatory trading system that spells out their rights and their obligations. Each country receives guarantees that its exports will be treated fairly and consistently in other countriesÌ markets. Each promises to do the same for imports into its own market. The system also gives developing countries some flexibility in implementing their commitments. In the new General Agreement on Trade in Services (GATS), WTO members have also made individual commitments stating which of their services sectors they are willing to open to foreign competition, and how open those markets are to become.

ððððððððððð Member states must ratify these treaties in their own countries, and when they ratify them, they enact legislation to modify existing Federal laws on their books in order to comply with their international obligations.ð In the real world, states are attempting to remove trade barriers and Domestic laws are being modified to reflect this new spirit.ð It has taken a long time to weaken the protectionist position primarily adopted by developing nations.ð In the world of e-Commerce, it is hoped that nations will create the rules together so as to avoid misunderstandings and avoid rebuilding barriers in a system that technologically has none.

WTO

ððððððððððð The WTO came into being in 1995 and it is the only international organization dealing with the global rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably and freely as possible. It does this by:

Administering trade agreements
Acting as a forum for trade negotiations
Settling trade disputes
Reviewing national trade policies
Assisting developing countries in trade policy issues, through technical assistance and training programs, and
Cooperating with other international organizations

The WTO is effectively a government of governments in trade related aspects, although its enforcement powers are not always used. The GATT was created when trade in goods dominated international trade. Since then, trade in services; transportation, travel, banking, insurance, telecommunications has become more important, so has the trade in ideas; inventions and designs.ð Therefore the GATT has been amended and updated into the new WTO Agreements and it lives alongside of GATS (General Agreement on Trade in Services) and TRIPS (Trade Related Aspects of Intellectual Property Rights).[5] [6]

ððððððððððð In March 1998, the WTO released its study entitled Electronic Commerce and the Role of the WTO.[7]ð The study examined the potential gains to trade from the increased use of the Internet for commercial purposes and contends that the Internet, as an instrument for international trade will fall under the WTOÌs General Agreement on Trade in Services (GATS). The Council for Trade in Services published a note on Computer and Related Services in July 1998 [8]. It reviews the GATS Sectoral Classifications, the economic effects of trade in this sector and analyses the types of measures listed in the 62 schedules containing commitments on computer and related services (in number of measures, by type of measure and mode of supply). The work programme on electronic commerce now in progress at the WTO aims to provide the answers to three questions. First, how do existing WTO agreements impact on e-commerce? Second, are there any weaknesses or omissions in the law which need to be remedied? And third, are there any new issues not now covered by the WTO system on which members want to negotiate new disciplines?

ððððððððððð WTO Director-General Renato Ruggiero, who represented the WTO at the OECD Ministerial Conference in Ottawa, October 1998, indicated that the goal of the WTO was not to create a set of new rules to govern the electronic marketplace, rather to use existing frameworks already in place.ð Agreements such as the GATS, Trade Related Aspects of Intellectual Property Rights (TRIPS) and Agreement on Telecommunications Services are WTO agreements that already in one form or another deal with e-Commerce related issues.[9] [10]

Mike Moore, the current Director General, recently stated;

ðÏAlthough the WTO is increasingly involved with electronic commerce, our responsibility for it is limited and specialized. We are not in the business of regulating the Internet and we never shall be. The huge potential of electronic commerce may be yet stifled by over-regulation and interference by governments. But if that happens, it will be despite, not because of, the WTO÷.. As far as international trade is concerned, electronic commerce essentially means two things. First, it is an important channel for retailing and wholesaling goods and services. Rights to provide retail and wholesale distribution are covered by the GATS. Second, and probably more important, electronic commerce is the delivery of services direct to the consumer in the form of digitized information. The GATS covers the delivery of services by any means, including electronic.Ó [11]

NAFTA and other regional agreements basically flow from the WTO principles.

THE ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT (OECD)

ððððððððððð The OECD groups 30 member countries in an organization that, provides governments a setting in which to discuss, develop and perfect economic and social policy. They work to co-ordinate domestic and international policies that increasingly in todays globalize world must form a web of even practice across nations. Their exchanges may lead to agreements to act in a formal way by establishing legally-binding codes for free flow of capital and services, agreements to crack down on bribery or to end subsidies for shipbuilding. But more often, their discussion makes for better-informed work within their own governments on the spectrum of public policy and clarifies the impact of national policies on the international community.ðð The OECDÎs purpose is to achieve the highest sustainable economic growth and social well-being. [12]ð

ððððððððððð

As Electronic commerce is a key element in the OECDÌs vision for economic growth and improved social conditions, and as electronic commerce is inherently transborder and its development will depend on international solutions, on October 7-9, 1998, nearly a thousand participants, including Ministers and high-level officials from all 29[13] OECD Member countries, 12 non-member countries, 12 international organizations, and representatives from business, trade unions, consumer groups and other non-governmental organizations[14] gathered in Ottawa for a Ministerial Conference ÏA Borderless World - Realizing the Potential of Global Electronic CommerceÓ.[15]

The main issues the conference set out to address were:

1. Building trust for users and consumers;

Ö The use of technology and the implementation of policy designed to protect privacy and collection of personal data and incorporate appropriate redress mechanisms for misuse of the above.

Ö ðThe building and use of secure encryption programs in the public and private sectors.

Ö ðFull and fair disclosure of essential information, advertisements, complaints handling, dispute resolution, and other relevant issues in consumer protection.

2. Establishing ground rules for the digital marketplace;

Ö Consumers and business people are looking to governments to ensure that the rules in the virtual world are equivalent to, transparent, and as predictable as those in the physical world as close as possible. As the leading international organization in taxation, the OECD was given the mandate, in close working arrangements with other organizations, business and non-member countries to develop a taxation framework applicable to e-Commerce.

3. Enhancing the information infrastructure for electronic commerce; i.e., creating universal and affordable access which depends upon appropriate telecommunication policies and regulatory frameworks.

4. Maximizing the benefits.

Ö Use has to be widespread which links citizens of the world

Ö This requires an understanding of the needs of business and citizens in both developing and developed countries.[16]

ðððð The Conference produced a number of outcomes Ò both those that were achieved at the conference and those that have been agreed to be undertaken as a result of this Conference Ò which together set the stage for the development of solutions to the problems confronting electronic commerce:

ðððð For the first time at an OECD Ministerial event, the OECD recognized that assembling such a diverse target group to think collectively about problems is an important step towards finding solutions.

ðððð Three action oriented documents were tabled that improve the transparency of work in this area by outlining who is doing what to solve these various problems together:

1. The OECD Action Plan for Electronic Commerce;

2. The Report on International and Regional Bodies: Activities and Initiatives in Electronic Commerce; and

3. The Global Action Plan for Electronic Commerce prepared by Business with Recommendations for Governments [17].

ðððð Ministerial Declarations that establish baseline principles and goals, and provide guidance regarding the OECDÌs further work were adopted in three critical areas:

ððððððððð The Declaration on Protection of Privacy on Global Networks reaffirms the importance of protecting privacy, recognizing that the principles outlined in the 1980 OECD Guidelines[18] [19] continue to provide an international foundation for the protection of privacy on any medium, and that countries should work together, and with the private sector, to ensure their effective implementation in an open and global network environment. For those businesses who choose to expand their activities to information and communication networks, to encourage them to adopt policies and technical solutions which will guarantee the protection of the privacy of individuals on the networks, and in particular on the Internet and to foster public education on issues relating to the protection of privacy and the use of technology;

ððððððððð The Declaration on Consumer Protection in the Context of Electronic Commerce[20] highlights the need to ensure that consumers who participate in electronic commerce are afforded a transparent and effective level of protection for electronic transactions; and

ððððððððð The Declaration on Authentication for Electronic Commerce states MinistersÌ determination not to discriminate against the authentication approaches taken by other countries and to amend, where appropriate, the technology or media specific requirements in current laws or policies that might impede electronic commerce. [21][22]

ðððð Several outcomes were achieved since Ottawa and they are enumerated in the Progress Report on the OECD Action Plan for Electronic Commerce[23]

THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNICITRAL)

UNICITRAL consists of States from all regions and economic development, and its mandate is to promote harmonization and unification of international trade law through conventions, model laws and rules, which are acceptable worldwide.

It has previously formulated the United Nations Contract for the International Sale Of Goods (CISG),[24][25] and the UNICITRAL Model Laws on International Commercial Arbitration, to name a few.ð It prepared the Model Law on Electronic Commerce. The Model law was prepared as a model to countries for the evaluation and modernization of their laws relating to computerized or other modern communication techniques and would also be used by a number of states with limited familiarity with modern communication techniques. The Commission commenced their studies of this area in 1985.

In the process it became clear that there were 2 problem areas:

1. mandatory paper based documentation requirements in the major laws of most countries; and

2. the incompatibility of domestic contractual frameworks and international trade requirements.

In order to deal with these areas, they developed the Model Law on Electronic Commerce in 1996[26], which is intended to facilitate the use of modern means of communications and storage of information, such as electronic data interchange (EDI), electronic mail and telecopy, with or without the use of such support as the Internet. The basic purpose of the Model Law was to establish equivalence between electronic and paper transactions.ð This attempt was achieved through a process called ÏFunctional EquivalenceÓ.ð An example is that the function of the signature is to identify the identity of a signatory and the consent of the signatory to the contents of a document.ð The Model LawÌs position was that any electronic message that fulfills both these functions ought to be regarded as legally acceptable.ð Another important principle is that neither of the electronic or paper transactions will receive priority over each other and the scope was to cover both commercial and non-commercial transactions as well as private sector and government activities.[27]

A number of countries and individual states or provinces have already enacted laws based on the Model Law.[28] Some of these will be enumerated in the section ÏComparative Domestic Government And Ngo Policies On Regulating The InternetÓ.ð The International Chamber of Commerce (ICC) is recommending that most governments should implement the law.

ððððððððððð With a view to assisting executive branches of Governments, legislative bodies and courts in enacting and interpreting the Model Law, the Commission has produced a Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce.

ððððððððððð As a complement to the above UNICITRAL Working Group on Electronic Commerce has approved the Model Law On Electronic Signatures (2001) andð in March 2001 has enacted draft Guidelines To The Enactment Of The Model Law and will present it as a package to the Secretariat in Vienna in June 2001.ð This Model Law and Guidelines are designed to help States develop a modern, harmonized and fair legislative framework to address more effectively the issues of electronic signatures.[29]

THE ASIA PACIFIC ECONOMIC COOPERATION (APEC)

APEC, the Asia Pacific Economic Cooperation, was established in 1989 in response to the growing interdependence among Asia-Pacific economies. Today APEC includes all the major economies of the region and the most dynamic, fastest growing economies in the world.ð Peru, Russia and Vietnam became the latest members in November 1998.ð There are 21 members.[30]

In 1997, APEC leaders agreed to the development of a work plan for electronic commerce. [31] The first phase consisting of benchmarking electronic commerce developments in member countries has been completed. In November 1998 at Kuala Lampur, the leaders developed an electronic commerce mission statement to promote the use of electronic commerce in the region, and the development of recommendations for technical cooperation and capacity building, public sector use of electronic commerce, and outreach programs targeted at small and medium sized enterprise.[32]

THE FREE TRADE AGREEMENT OF THE AMERICAS (FTAA)

FTAA[33] the Free Trade Agreement Of The Americas has formed the Joint Government - Private Sector Committee Of Experts On Electronic Commerce to make recommendations to ministers on how to increase and broaden the benefits of electronic commerce and, in particular, how electronic commerce should be dealt with in the context of the FTAA negotiations.ð The Committee developed recommendations[34] for ministers prior to their November 1999 meeting, [35]and developed a second report with recommendations to the Ministers in November 2000 as a preparation for the FTAA meetings in Quebec City a few weeks ago.[36]

G-8 PILOT PROJECT ÏA GLOBAL MARKET FOR SMESÓ

G-8 Pilot Project ÏA Global Market For SMESÓ is a project being coordinated by Japan, USA and the European Union, involving twenty countries and international organizations, including Canada.ð Its overall objective is to provide a framework and implementation plan for global coordination and cooperation focusing on SMEs.[37]

COMPARATIVE DOMESTIC GOVERNMENT AND NGO POLICIES ON REGULATING THE INTERNET

ððððððððððð The purpose of this part of the paper is a survey of the electronic commerce policy, laws and initiatives that are happening or have happened at the domestic level in order to see how consistent the domestic scene is with the member states international endeavors.

ðUSAð

ððððððððððð ðÏ÷the United States will work through the World Trade Organization to turn the Internet into a free-trade zone within the next 12 months÷. We will advocate as we seek to establish basic rules for international electronic commerce with new regulations and no new discriminatory taxesÓ

ððððððððððððððððððððððð ððððððððððððððððððððððð ððððððððððð ðPresident Bill Clinton, July 1, 1997.[38]

ððððððððððð That was a portion of the remarks the President made when releasing A Framework for Global Electronic Commerce which is the AdministrationÌs strategy for fostering increased business and consumer confidence in the use of electronic networks for commerce.ð It was released after widespread consultation with industry, consumer groups and the Internet community.

ððððððððððð ðThe Framework lists five principles to guide government support for the evolution of electronic commerce and makes recommendations about nine areas where international efforts are needed to preserve the Internet as a non-regulatory environment.

ððððððððððð ðThe five principles are as follows:

1. ððThe Internet should be market driven and industry self-regulated.

2. ðGovernments should avoid undue restrictions, involvement or intervention on electronic commerce.

3. ðGovernment limited role is to ensure competition, protect intellectual property and privacy, prevent fraud, foster transparency and facilitate dispute resolution.

4. ðGovernment should recognize bottom up governance of the Internet which will not fit in with the regulatory structure set up for telecommunications, radio and television.

5. ðThe Internet legal framework should be consistent in all jurisdictions of the globe.

ðððððððððð The recommendations are summarized as follows:

1. ðTaxes and tariffs: it should be declared tariff free due to its global medium.ð No new taxes should be applied.ð A uniform approach to existing taxes should occur across jurisdictions.

2. ðElectronic Payments System: as the technology is rapidly changing, donÌt enact inflexible regulations and in the near term monitor each experiment.

3. ðUniform Commercial Code for Electronic Commerce: it is good to have predictable and widely acceptable legal principles supporting commercial transactions.ð An international uniform code should encourage governmental recognition of electronic contracts, acceptance of electronic signatures and other authentication procedures; and promote dispute settlement.

4. ðIntellectual Property Protection:ð for commerce to work, sellers must know that their intellectual property will not be stolen.ð Buyers must know they are getting authentic products.ð WIPO treaty for copyright protection should be ratified. The Administration will work only to resolve conflicts that arise from different national treatments of trademarks as they relate to the Internet.ð It may be possible to have a self-regulated body dealing with conflict of trademarks and domain names.

5. ðPrivacy: this is essential if people are to be comfortable using the Internet.ð Data should not be collected unless consumers know how it will be used and have a choice on its use.ð Consumers should have redress for improper use or disclosure of personal information.ð The Administration supports private sector initiatives to self regulate and the government will work with industry and privacy advocates to address concerns.

6. ðSecurity: the Global Information Infrastructure (GII) must be secure and reliable.ð The Administration will work with industry to create a proper encryption environment.

7. ðTelecommunications infrastructure and information technology: the United States will work internationally to remove barriers to competition, choice, lower prices and improved service.

8. ðContent: Administration encourages industry self-regulation and will encourage development of user friendly filtering and blocking technology.

9. ðTechnical Standards: the marketplace, not governments, should determine technical standards for interoperability on the Internet.[39]

Following the framework, the President issued a Directive[40] to heads of executive departments and agencies to pursue the above with specific actions. In the years that have past the departments have tabled policy statements and working papers consistent with the framework that the President has issued.ð It must be remembered that the United States is the main proponent of leadership by the private sector and the administrationÌs policy not to enact unnecessary restrictive legislation.ð Ira Magaziner, the past head of the Electronic Commerce Program for President Clinton felt that, notwithstanding the ability to legislate issues such as privacy by Congress, the enforcement of that legislation would be near to impossible.ð Notwithstanding that view ChildrenÌs Online Privacy Protection Act[41] became effective April 200

Despite a whole plethora of Bills that have been presented to the House and to the Senate, most have not passed.ð A summary of Electronic Commerce and Digital Signature Legislation before Congress as well as a summary of Statutes and Regulations is available for viewing at http://www.mbc.com/ecommerce.html, prepared by a Chicago-based law firm of McBride, Baker and Coles or at Baker & MackenzieÌs site http://www.bmck.com/ecommerce/usa.htm. which is very comprehensive.

ðThe United States has passed the Digital Millennium Copyright Act, which recognized the electronic medium for copyright purposes and ratifies United StatesÌ commitments under the World Trade Organization WIPO Treaties concerning copyright, which is available for viewing at the Library of Congress at http://lcweb.loc.gov/copyright/legislation

The National Conference of Commissioners on Uniform State Laws at its Annual Meeting approved the Uniform Electronic Transactions Act (UETA) in July 1999 as a body of legislation validating the use of electronic records and electronic signatures.ðð UETA is in line with the general principles set out in the UNICITRAL Model Electronic Commerce Law.[42]ð This draft legislation is aimed at modifying the general contract law, as is necessary or desirable to support transactions utilizing existing and future electronic or computerized technologies.[43] [44] During the past year, 18 States have enacted the Uniform Electronic Transactions Act (UETA), and it is pending in at least another ten.

Both houses of Congress have approved S. 761, titled the Electronic Signatures in Global and National Commerce Act or ÏE-Sign,Ó and the President signed it on June 30, 2000. It deals with the issue of electronic signatures and contracts, which could effectively pre-empt inconsistent, state legislation[45]. It directs the Department of Commerce to promote the use and acceptance of electronic signatures on an international basis by following certain principles outlined in the bill.ð The principles included: (a) free markets and self-regulation rather than government standards or rules for the use of electronic records and signatures; (b) technology neutral policies; (c) allowing parties to a transaction to establish reasonable requirements regarding the types of electronic records and signatures; (d) legal validity not to be denied to electronic records and signatures on the ground that they are not in writing; and (e) no foreign government imposition of standards on private industry.ð The Act also amends the Securities Exchange Act of 1934 to give the SEC the authority to prescribe regulations covering the use of electronic records and signatures as long as the Commission does not promulgate regulations contrary to the principles listed above.[46]ð Recently, a U.S. Senate bill has been introduced called Can-Spam Act, which would criminalize some forms of commercial e-mails.ð The proposed legislation, which has recently received Federal Trade Commission's endorsement, requires that commercial e-mail messages contain valid return addresses that recipients can use to opt out of receiving further unsolicited e-mails[47].ð

ððððððððððð As previously mentioned, the Clinton Administration opposed any new taxes with regard to the Internet and enacted the Internet Tax Freedom Act assuring a moratorium on levying Internet access tax on the World Wide Web.ð The Bill prohibited for three years, state and local taxes on Internet access and multiple or discriminatory taxes on electronic commerce.ð The Act also directed the President to go to work with other countries to make the Internet a global tariff free zone.ð It also grandfathers existing state and local taxes that are currently imposed on the Internet.ð There was a flurry of Bills trying to take opposite positions.

EUROPEAN UNION

ð Perhaps as a result of the codification of laws under the civil law system and the predominance of civil law systems in the European Union, the Europeans have been quicker to attempt to enact legislation or issue directives regulating the information society. The European Union has done a number of initiatives in electronic commerce and digital signature legislation. This has resulted in divergent views between the European Union and the United States, as has been seen under the subject of privacy directive as described below.ð

Currently, the European Union is in the process of enacting online trading laws.ð The proposed plans are quite controversial and have started a heated debate among member states.ð Internet, marketing and publishing industries could soon face a new legal barrier to communicating across borders in the European Union. The European Commission, the European Union's executive body, will in the coming weeks vote on a proposal for a new law governing non-contractual liability in cross-border disputes within the EU. It aims to clarify what national laws should apply in a dispute involving a citizen in one EU country and a company marketing its goods or services, or communicating over the Internet from another. The proposal argues that the law in the consumer's country should apply in such a dispute. By enshrining the laws in the country of the consumer, Rome II would create "extreme legal uncertainty" for anyone planning to do business over the Internet in Europe. This tack would directly contradict several existing pieces of legislation, such as the e-commerce directive passed last year, which rules that the laws of the country of origin should apply.

ðIn December EU justice ministers passed a similar law governing jurisdiction in cross-border disputes The main issue of the debate was whether disputes over materials bought on the Internet should be settled in the consumer's country of origin or in that of the merchant.ð The EU transformed the Brussels Convention, originally adopted in 1968, into legislation.ð [48] The Brussels regulation allowed consumers to go to courts in their own country in a cross-border dispute. European officials argued at the time it was passed that the focus on the consumer is essential to help get e-commerce off the ground in Europe.

ðThe Convention, which gives customers the right to sue in their own country, is unpopular with many businesses.ð They claim that complying with different laws, languages and procedures in every country would be difficult and expensive.[49]ð

ðWith Rome II and its predecessor law governing jurisdiction, Europe is seen as moving away from an international position. This will could lead to potential trade disputes as are described below.[50]

To examine the European Union Directives and consumer protection, distant selling, privacy electronic contracting and digital signatures go to http://europa.eu.int/ISPO/ecommerce/legal/legal.html the European Commission Information Society Directorate-General.

CANADA

CanadaÌs international strategy is based on the recognition that e-commerce is essentially global and that Canadian industry and government should work together to influence global policy.ð It is for this reason that Industry Canada and the Electronic Commerce Task Force of Industry Canada, hosted the OECD Ministerial Conference in Ottawa in 1998.ð Canada helped in setting the agenda for the OECD Ministerial and according to Ms. Michelle dÌAuray, Director of the Electronic Commerce Task Force at a seminar on electronic commerce and development on the 19^th of February, 1999 at the WTO, some of the tangible achievements so far were the adoption of cryptography policy, tabling of legislation on privacy, developing voluntary guidelines on consumer protection and announcements of a policy of no new tax for e-Commerce.ð She also stated that of the 629 Federal legal enactments in Canada, 335 required the use of paper documents with signatures on paper.ð Legislation to recognize electronic transactions at par with paper transactions has been passed[51].ð It was introduced to protect personal information in the private sector, creating an electronic alternative for doing business with the Federal Government and clarified how the courts assessed the reliability of electronic records used as evidence.ð This legislation is recreating in cyberspace the same expectations of trust, confidence, and reliability that now exist in everyday commerce.[52]ð Other speakers will deal with this matter in greater detail.ð For a good survey of electronic commerce in Canada with valuable links, see Professor Michael Giest (of the University of Ottawa) web site http://www.uottawa.ca/~geist/ec.html.ð As well, see the Electronic Commerce Task Force site at http://www.e-com.ic.gc.ca/english for some valuable links as well.

SINGAPORE

ððððððððððð Singapore has enacted the 1999 Singapore Electronic Transactions (Certification Authority) Regulations, the Singapore Security Guidelines For Certification Authorities and the 1998 Singapore Electronic Transactions Act making it one of the first complete on-line countries. Singapore has a goal of being a trusted hub of E-Commerce for both the domestic and international markets.[53] The Singapore Electronic Transactions Act past June 1998 provides a framework for the legal definition of electronic signatures, digital signatures and electronic records.ð It was drawn from UNICITRAL Model Law, and others.[54]In order to promote Singapore as an "economic hub", Infocomm Development Authority of Singapore (IDA) and the Singapore Productivity and Standards Board (PSB) have put in place a $30 million incentive program.ðð This aims to provide entrepreneurs with knowledge acquisition, technology transfers and e-Business value creation[55]. It has a mechanism for and has implemented licensing of certification authorities and is creating a national public key infrastructure[56]. Furthermore, Singapore's Communication and IT minister has recently announced that all existing laws will be scrutinized to bring them up to date to "meet the needs of the Internet economy"[57].ð

ððððððððððð On April 30, 1999, Reuters reported Ïthat Singapore national telecommunication company has scanned more than 200,000 computers of its Internet customers without their knowledge as part of a plan to ward off hackers.ð The telecom is owned 80% by the government and claimed that it was determining whether the customers were vulnerable to hacker attacks.ð Singapore telephone said that this was a value added service and that they did not delve into users computer databases or amount to an illegally entry into computer accounts.ð They felt that there was no invasion of privacy, it was basically to check if the system had opened windows through which hackers can exploit.Óð In any other regime this might seriously be considered to be a privacy issue.ð Perhaps in response to International criticism, the Infocomm Development Authority (IDA) of Singapore has released a set of guidelines for Service Providers to follow and is meant to safeguard the unauthorized security scanning of individuals' computers[58].ð These guidelines, however allow Service Providers to sweep their customers' computers for "viruses and Trojans".

Singapore has been actively participating in international discussions (for example, ASEAN, APEC, UNCITRAL, WTO and WIPO) on e-commerce-related issues and policies.ð Singapore co-chaired the APEC EC Task Force and vice-chaired the UNCITRAL Working Group on EC.ð Singapore is also looking into establishing bilateral agreements with other EC-ready countries.ð In early June 1999, the worldÌs first international cross-certification was performed between Netrust and a counterpart in Canada.[59]

CHINA

ððððððððððð China has enacted the Computer Information Network and Internet Security, Protection and Management Regulations.[60]ð China is very concerned about protecting its boarders and with the Internet being a global infrastructure; China has had to heavily censor the Internet.ð The regulations require any organization that uses computer information networks or the Internet within China to register with the Ministry of Public Security and to provide secure, protected and well managed networks, to carry out technical measures of network security and protection, and to provide security education and training.[61]

Section 1 states, ÏIn order to strengthen the security and the protection of computer information networks and of the Internet, and to preserve the social order and social stability, these regulations have been established.ð The Ministry of Public Securities shall protect the public security of computer information networks and the Internet as well as protect the legal rights of Internet service providing units and individuals as well as the public interest.Ó Section 4 says that no unit or individual may use the Internet to harm national security, disclose state secrets, harm the interest of the state or society or of a group, the legal rights of citizens or to take part in criminal activities.ð Section 5 goes on to enumerate certain kinds of information, which is illegal to Ïreplicate, retrieve, or transmitÓ. That is i.e. overthrowing the government, harming national unification, hatred and discrimination, sexually suggestive material, gambling, violence and murder.ð For violations of the regulations there are serious fines and criminal prosecutions.[62]

In the PeopleÌs Republic of China, a company wishing to import or export encryption products must first obtain a license through the Ministry of Foreign Trade and Economic Cooperation, which historically has been difficult to obtain.ð In combination with the above legislation, this would prevent using the Internet to transfer high bit encryption programs.

Ironically, despite the reversion of Hong Kong back to China, Hong Kong retains separate laws for economic and trade matters including export and import controls under the Sino-British Joint Declaration and Basic Law of Hong Kong Special Administrative Regime passed by China.ð However, while the Department of Trade acknowledges that existing legislation may not include the intangible transfer of software via the Internet, the Department of Trade strongly encourages the importer/exporter to confer with the Department pertaining to such transfers.[63]ð Notwithstanding the regulations, there is still a feeling according to Shanghai Deputy, Zhang Lainsheng, that insecurity of information has become the leading problem plaguing the rising e-business in China, even though the popularization in coastal cities makes e-business possible.ð There have been nearly 100 cases of computer break in last year in banks and securities companies.[64]

A recent case in China takes steps to recognize the rights of creators to copyright of their works copied over the net.ð The Haidian District PeopleÌs Court judged that the Beijing Cenpok Intercom Technology Co Ltd, the defendant, infringed the copyright owned by six writers, by uploading seven novels on the website Beijing Online (BOL) without their permission.ð The case became famous throughout China because the then current Copyright Law did not contain specific clauses concerning the protection of copyright on Internet.ð The court held that the Copyright Law protects Internet-related copyright.ð ÏThe use of a piece of work in digital form presents a change in the medium, said the court ruling. ÏNo new work has been produced during the process. The copyright owner of the work still has copyright over itÓ. [65] In January of this year, a new draft of a copyright law was submitted to the National Peoples' Congress for review. This law aims to protect original works posted on the Internet[66].

Access to the Internet is a problem in China because Internet access is expensive. The telecommunications industry is monopolistic and in addition to keeping Internet access low, it is also responsible for hampering its own industry's development. However, there might be a hint of an end to the telecommunications industry's monopoly. Wang Mingshi, a member of the Standing Committee of the National Peoples' Congress recently asked the industry to shift their focus to increasing competitiveness.[67] Until lawmakers take positive action, the status quo will prevail.

JAPAN

ððððððððððð Japan has various initiatives pertaining to electronic commerce as well as entrusted third party projects, but Japan has not implemented any laws pertaining to certification authorities.ð JapanÌs Ministry of Trade and Industry issued a paper ÏTowards the Age of Digital Economy, For Rapid Progress in Japanese Economy and World Economic Growth in the Twenty First CenturyÓ.ð This paper describes JapanÌs general approach to electronic commerce.[68]ð JapanÌs efforts in electronic commerce have lagged behind those of the United States due to restrained investment in information technology after the bursting of the economic bubble.ð However, efforts are beginning to be made to prepare for the age of electronic commerce including investment in information technology among companies, as well as the precursory introduction of electronic commerce in some sectors.ðð Due to the globalization of economic activities and the transfer of value and assets by electronic means and issues of transfer of information between people relating to security of personal information might necessitate the consideration of the establishment of new rules to deal with these situation.ð However, Japan feels that as new problems arise, rather than adopting regulations to deal with these problems, they should be solved by technological means as well as competition in the marketplace or the creation of new business practices. [69]ð In his paper the development and future challenges of self-regulation in Japan, with special regard to electronic commerce, Professor of Law, Tsuneo Matsumoto,[70] reviews a number of initiatives that have taken place in e-Commerce.ð Japan has established committees and working groups with participation of about 240 major companies doing business in Japan relating to consumer issues, privacy issues and electronic payment issues.ð The group that had drafted the ECOM (the Electronic Commerce Promotion Council Guidelines for Consumer Transactions) recently approved the ICC Internet Guidelines Relating to Advertising and Marketing on the Internet.ð There is also a move, notwithstanding the deregulation in Japan, to have consumer contract law enacted.[71]

On April 14, 2000 the Ministry of International Trade and Industry, Ministry of Posts and Telecommunications and Ministry of Justice submitted a bill to the Diet covering digital signatures and authentication.ð The Digital Signatures Bill is designed to give digital signatures the same legal basis as seals and actual signatures, as well as to establish a legal definition of authentication bodies that issue digital certificates.ð The Bill is likely to take effect before April 2001. On April 12, the Diet passed a partial revision of the commercial registration law, which sets details of digital certificates the Ministry of Justice will issue for electronic documents involving commercial registration. The Japanese are hoping that the bill and the revision will make e-commerce safer and put Japan on the same level with the EU, US and other countries which have already passed e-commerce legislation.[72]

ððððððððððð However, Japan is lagging behind other countries in Internet use.ð The primary cause of this delay in catching up with other countries is the monopoly exercised by Nippon Telephone and Telegraph (NTT), which controls over 90 percent of local phone lines.ðð Dial up access is expensive in Japan as the per minute charges are exorbitant and so most of the population has resorted to using their cell phones to surf the Internet which obviously has current limitations.ð A proposed new law strives to overcome these difficulties by trying to cut some of the high costs of dial up access. Furthermore, the government intends to pass resolutions that will supersede the 733 or soð existing regulations and the 124 current laws, which they have found to be obstructing e-commerce initiatives[73]. The Japanese government has passed a law that is meant to bolster an "Information Network Society" and aims to do so by increasing Internet access and removing legislative obstacles to e-commerce growth.ð Rather than requiring specific legislative remedies, it is meant to create a "pro-information technology legislative environment". It calls for universal Internet access as well as giving the Japanese much- needed technology skills;[74] it also calls for e-government initiatives such that government documents and services can be accessed through the Internet. The Japanese Prime Minister, Yoshiro Mori, will oversee the implementation of this policy[75].ð

ððððððððððð Cabinet approved a bill in October 2000 that allows for the electronic issuance of documents related to economic activities among private sector firms. This bill revises and changes 50 other laws which makes it possible for the private sector to use electronic means, including e-mails, faxes and other electronic means provided that the parties involved have agreed to use such means for communication[76].

ððððððððððð ð

AUSTRALIA

AustraliaÌs legislation is based upon a report of the Electronic Commerce Expert Group which identified a wide range of fundamental legal problems and broad policy options for the way in which these legal issues could be resolved.ð In considering their options they based their decisions upon the UNICITRAL Model Law Principles, ÏFunctional EquivalencyÓ and ÏTechnology NeutralityÓ.ðð After reviewing the legislative efforts throughout the world, the Expert Group recommended enactment of nationwide electronic commerce legislation that will create a scheme of national application that reduces uncertainty about the use of electronic commerce and removes legal obstacles to its use, thereby resolving the legal issues they identified.ð They did not recommend detailed legislation for electronic signatures but recommended that legislation deal simply with the legal effect of electronic signatures. This is due to the rapid technological changes in the market.[77]ð For a complete copy of the report see http://www.law.gov.au/aghome/advisory /eceg/single.htm.ð As mentioned above two Australian states; New South Wales and Victoria introduced and passed the Uniform Electronic Transactions Law 2000.ð The rapid introduction/enactment of the uniform law in these States is a significant step in the national uniform implementation of electronic transactions legislation in Australia.

ððððððððððð ð The government has also drafted data protection legislation and is active in setting up public key technology for dealings with the government.[78]

ððððððððððð The Australian government has recently earmarked 1.2 million dollars for the governmentÌs Information Technology Online Program.ð These funds will be used to help develop b2b e-commerce solutions as well as to help companies increase efficiency and reduce costs[79].

ððððððððððð A new bill, the Privacy Amendment (Private sector) Act 2000[80] received Royal Assent on December 6, 2000. This law aims to provide a privacy scheme for the private sector. The amendments provide standards for the collection and disclosure of personal information.ð It also discusses the disclosure of health information and the security necessary to protect such information. The legislation provides standards for the transborder flow of data which have to be "substantially similar" to the National Privacy Principles before data can be transferred to a foreign country[81].ð This legislation takes effect July 1, 2001 or 12 months after the bill has been passed, whichever is the later date.

For an analysis of the e-Commerce laws and position of other countries not mentioned, or specific members of the European Union, I would refer you to the Limits of Trust and the web site of McBride Baker and Coles, http://www.mbc.com.ð There are also a number of excellent links retrievable through search engines.

ICC

ððððððððððð The International Chamber of Commerce (ICC)[82] is a Paris based organization that promotes interactive trade and investment and the market economic system worldwide.ð It makes rules that govern the conduct of business across borders and provides essential services, foremost among them being the ICC International Court of Arbitration.ð It has members from 63 national committees (the Canadian International Chamber of Commerce - CICC is one of them) and 7000 member companies and associations from over 130 countries.ð Its function is to present views to the various governments and coordinates with its members to address current issues including electronic commerce.ð The ICC through the BIAC was a leading participant at the OECD Ministerial in Ottawa and is instrumental in creating the GBD described below.ð Some of the proposed guides and model laws put forth by the ICC are the GUIDEC (General Usage for International Digitally Ensured Commerce), the ICC Model Clause for Use in Contracts Involving Transborder Data Flows[83].ð The GUIDEC is a general framework for ÏensuringÓ and ÏcertificationÓ of digital messages, based upon existing civil and common law treatment of the subject as well as pertinent international principles.ð The system proposed by GUIDEC is the appointment of trustworthy third parties (Certifiers) who will issue certificates which receiving parties can rely upon verifying that the ensuring party has the ability to contract and bind either himself or is an authorized representative. The ICC has also issued revised guidelines for advertising and marketing on the Internet.[84]

ððððððððððð Three major groups including the ICC, the Global Business Dialogue on Electronic Commerce and the Business and Advisory committee to the OECD have joined forces to identify best practices for e-commerce and will share expertise on such subjects as cyber security, alternative dispute resolution for e-commerce and internet property rights[85].ð This initiative will help build a consensus on these issues.

GBD-Global Business Dialogue

Following the success of the ICC and BIAC at the Ottawa OECD Ministerial, Industry decided the emerging digital economy challenges all industry stakeholders to cooperate at a global level in reaching consensus on a range of public policy issues. The objective of the GBD is to be the global voice of industry on policy issues related to the Internet and global electronic commerce.ð The GBD will focus on industry-led, market-driven, self-regulatory proposals that encourage private investment in a competitive environment.

The GBD process will be company-led, transparent, and open to all industry stakeholders throughout the world. The company-led approach will contribute a sense of urgency and business-oriented flexibility to the ongoing policy discussions. GBD recommendations will be the result of broad support from all industry sectors interested in electronic commerce.ð As a priority, the GBD will focus its outreach toward companies from developing countries and SMEs to achieve their broad support for this endeavor.ð

The GBD will undertake its global consensus building process independent of governments/administrations and international governmental organizations.ð The GBD will identify, respect, and build upon the initiatives of trade associations, expert working groups, and industry-led coalitions.ð The work of the GBD will be complementary to existing initiatives and not duplicate them.ð The purpose of the GBD is to be the voice of global business in constructing a new regulatory model to facilitate global electronic commerce. The GBD effort will also provide an action plan for governments so that they may work constructively with the private sector to bring about important economic and social benefits of this new virtual marketplace.[86]

On September 13, 1999, at a GBD Summit in Paris, member organizations fully endorsed industry self-regulation as the preferred approach to building consumer confidence in the Internet and e-commerce world-wide.ð Jean Monty, the CEO of BCE, Canada's only representative at the Summit, suggested that "building that confidence

centres around the issues of authentication, security and transparency.''[87]ð The GBD identified three ways in which to achieve this: by providing legally recognized public key security or encryption systems; developing a Code of Conduct for sellers over the Internet; and by creating a simple and affordable global resolution process for disputes.[88]

The GBDE has established a number of working groups for the year 2001. These will form and inform the GBDE about the relevant issues in e-commerce.ð The business steering committee, for instance, is made up of CEOs from many leading corporations around the world and will help to narrow the objectives, needs and goals of these individuals and their organizations with regard to the emerging e-commerce markets. Another working group is working on Internet payment alternatives. More information about these groups and their goals are available from the GBDE website at http://www.gbde.org/.

SPECIFIC INTERNET COMMERCE CONCERNS RAISED BY THE INTERNATIONAL LEGAL COMMUNITY, IN AREAS OF TAXATION, PRIVACY, ACCESS, CULTURE AND CONSUMER PROTECTION

TAXATION [89]

ððððððððððð CanadaÌs Information Highway Advisory Council stated,Ï÷ taxes generally applied across the economy, such as retail sales tax and business income taxes, should apply equally to Internet based activities in order to avoid putting competing suppliers in other media at an unfair advantage.ð Taxes specially directed at Internet services, however, could have a detrimental effect on use of the Internet and discourage investments in new products and services.Ó[90]

ððððððððððð As Taxation has been discussed at this Conference[91], the purpose of this section of the paper is only to identify some of the key taxation issues that are being examined by the international community relating to electronic commerce. The efforts of one jurisdiction to amend its legislation or enact policy will be ineffective unless some sort of consensus can be reached either legally or technologically.ð The issue that is motivating some of our trading partners to take a different perspective, is that some countries are greater exporters of digitized products sold over the Internet and therefore, their treasuries would stand to benefit from the theory that taxation should be paid in the state which sells the goods, services or digitalized products as opposed to the state where the goods, services or products are consumed.

ððððððððððð The kind of transactions that Peter Cobb, a US solicitor and Chair of the Jurisdiction Project Tax Working Group of the American Bar Association[92] suggested that can be carried on over the Internet are:

a. Transactions involving physical goods, (i.e. Amazon.com)

b. Transactions involving non electronic services (i.e. law, accounting, architecture)

c. Transactions involving electronic services (i.e. Aol, Yahoo, software design)

d. Transaction involving information (i.e. New York Times on-line, Lexus, pornography)

e. Financial transactions (i.e. on-line banking, on-line gambling, on-line payment mechanisms)

f. Hybrid transactions

ððððððððððð What are some of the issues that differentiate electronic commerce from conventional commerce?

Jurisdiction Of Governments (Provincial/State And Federal) To Collect Taxes

ððððð A revenue authority must have jurisdiction over the income or the taxpayer in order to assess the tax.[93] This applies to local, provincial/state and national governments.ð However, there are differences between traditional commerce and Internet commerce, which affect the jurisdiction to assess and collect taxation:

1. Jurisdictional concepts based on physical geography such as the residence of the taxpayer who receives the income, the source with which the income has the closest connection, the situs of the property that gives rise to the income and the taxpayers permanent establishment or nationality/citizenship may require modifications to fit the world of electronic commerce.

2. The same applies to characterization of income as services rendered vs. goods sold, and of business profits vs. royalties, particularly in digital sales.

3. A taxpayerÌs Internet identity does not necessarily provide evidence about that taxpayerÌs true residency status.

4. Taxpayers can conduct a substantial business with a transient and insubstantial presence.

5. GST and VAT rules governing international services are amplified for electronic commerce services.

6. It is impossible to know the geographical points at which billions of Internet transactions began or ended. Attempts to tax intangible electronic commerce might lead to double taxation, and multiple reporting issues.

7. As an increasing amount of Internet traffic is transmitted by satellite-based technology and wireless transmissions, jurisdiction claims of States through whose Ether transactions pass loses meaning.ð

8. The value of transactions can be relatively small as the volume increases thereby making the current methods of enforcement inefficient.

9. Intermediaries such as distributors and retailers are being reduced and they have played an important roll re tax administration and compliance.

10. Electronic payment methods and privacy protection may lead to tracing problems.

ðððððððððð These are some of the problems relating to jurisdiction which taxing authorities will address so as not to artificially advantage or disadvantage electronic commerce over traditional commerce.

ððððððððððð In addition to the jurisdictional issues, other international tax principles that differ in the real world versus the virtual world have been identified and listed by KPMG in their Canadian Tax Letter, October 1998 at which time they also examined the position of the OECDÌs Committee on Fiscal Affairs and Revenue CanadaÌs position.ð See Appendix II for the relevant portion of that newsletter.ð

Obligation to Maintain Records of Transactions

ðððððððððð ðIn the Canadian context, if an electronic commerce business is a resident of Canada, or if it is established offshore and the FAPI[94] rules apply, or if they are otherwise required to pay or collect taxes, the taxpayer must maintain records of the transactions in Canada [95].ð Record now includesð Ïany other thing containing information, whether in writing or any other formÓ.[96]

ðððððððððð

All parties to e-Commerce transactions should investigate the record retention requirements of each otherÌs respective jurisdictions.ð In September 1998 Revenue Minister Dhalinal said, ÏInterpretation Circular 78-10RS and 779R (Book and Record Retention/Destruction) will be revised to explain the DepartmentÌs views with respect to the electronic environment.ð Revenue Canada will work with authorities in other OECD Countries relating to information exchange as they currently do under the WTO and NAFTA relating to customs and excise matters such as Rules of Origin of Goods.ð Revenue Canada also believes that there is adequate search and seizure powers under the Criminal Code and the Income Tax Act to deal with the difficulty of accessing encrypted information.

Using Traditional Industries As Analogous Lessons

ððððððððððð Canadian and international taxing authorities, and the OECD are examining various proposals to taxing the Internet.ð Some of the OECD[97] guideposts for efficient and equitable taxation are:

1. ðSimilar transactions should be taxed in the same way.

2. ððMinimize administrative costs as well as compliance cost.

3. ððTaxpayers should know what is to be taxed and when.

4. ððMinimize the potential for tax evasion and avoidance.

5. ððStructure tax changes to ensure a fair sharing of the tax base between countries.

ððððððððððð At the OECD Ministerial Conference in Ottawa, government and business dialogued and issued a joint declaration on taxation and electronic commerce. The declaration emphasized the need for the following:

1. A taxation framework for electronic commerce and the administrative arrangement to support that framework;

2. ðThat there would be great benefits for the administration of taxation through electronic commerce by simplifying the tax system and enhancing tax payer service;

3. Adequate information reporting mechanisms have to be in place.

4. There should be taxation neutrality between conventional commerce and electronic commerce;

5. The OECD is looking for input from other non-OECD members and the private sector.

How Do They Actually Implement These Principles For E-Commerce?

Ö Make use of available technology and commercial development.

Ö Maintain the ability to access reliable and verifiable information in order to identify taxpayers involved in e-Commerce in light of encryption and the debate over government access to private key codes of its citizens.

Ö Make sure appropriate systems are in place to control and collect taxes.ð This is one of the reasons for new central collection proposal of Revenue Canada.

Ö Rules for the consumption tax of cross border trade should result in the place where the consumption takes place and international agreement should be reached as to when supplies are consumed in a particular jurisdiction.[98]

ððððððððð ð

In April 2001, the OECD released their consensus regarding taxation. If a business sells its products from a website on a server that it owns or rents in another country, it could have a taxable presence in that country.[99] Web-based service providers, such as Internet Service Providers, who use servers in other countries to provide services such as web site hosting will be viewed as having a taxable presence where their servers are located. Member countries are not required to enact legislation in order to profit from this consensus and therefore the effect of the announcement is immediate. There is a feeling that the OECD decision is likely to result in a proliferation of overseas servers.ð

Until new legislation is enacted on an international basis, states may adopt principles that they have applied to traditional businesses such as inter-jurisdictional paper/telephone/fax mail-order transactions and technology transfers of intangible know-how.

Customs Duty

There has been an economic theory that suggests taxing the data stream flowing over the Internet rather than the transaction itself.ð This Ïbit taxÓ is aimed at tax avoidance.ð Critics believe it has shortcomings.ð 1. The volume flow is difficult to measure; and 2. There is a problem with attributing value to the data (i.e., non-commercial email vs. commercial transaction) and determining what is taxable (differences between window shopping and researching) [100]

ððððððððððð On February 19, 1998, United States proposed to the WTO, that Membersð Ï÷maintain÷ current practice not to impose duties on electronic transmission.Ó This means that electronic transmission of digitalized information will not be taxed for customs purposes only.ð However, the physical goods that may have been ordered by that transmission are not custom duty exempt, unless they are by virtue of a free trade agreement or otherwise.[101]ð This was confirmed at the Ottawa OECD Ministerial Conference.

BUILDING TRUST FOR USERS AND CONSUMERS

Consumer Protection

The growth of the Internet is spawning new information-based products and services and the electronic marketplace between business and consumers is growing exponentially. It has created a new consumer empowerment relating to purchasing decisions and has allowed manufacturers and suppliers to redefine their customer relationship.ð However, consumers have not embraced e-Commerce to the extent of business to business.ð The concerns that consumers have are questions about the accuracy of information, contract formation, the ability of redress and dispute resolution mechanisms, the potential for fraud, and privacy issues.[102]

In the real world, the face-to-face retail market offers consumers some assurance that their interactions and purchases are covered by national and private sector consumer protection. While there are broad areas of international agreement on consumer protection practices and standards, there are still significant differences, many of which are related to regulating commercial communications. Governments are faced with questions about how to protect their citizens without inhibiting an evolving electronic marketplace.[103] This involves balancing government intervention, industry self-regulation and understanding the advantages/limitations of technology and the existing consumer protection framework.ð The OECDÌs position is that businesses and consumer groups should work together to develop and implement voluntary self-regulatory codes that establish effective and enforceable consumer protection mechanisms, which could go toward building consumer confidence and trust.ð Governments and NGOÌs can provide guidance for the basic elements of global protection on line[104]. They can help the voluntary self regulated protection codes evolve and governments have the ongoing role in enforcing laws to back up these self regulatory plans if a business represents that they are complying, but fail to do so.ð Because of the global nature, there has to be an internationally coordinated approach to exchanging information on how to address the consumer protection issues.ð Many of the OECD member countries have begun to review existing consumer protection laws and practices and determine whether or not changes are necessary to accommodate the unique aspects of electronic commerce.ð This would be done in consultation with business and consumer representatives.ð The OECD Ministerial Conference also declared that they would encourage the development of technology as a tool to protect consumers and that it was important to educate users and increase business awareness of what laws apply to on-line activities.[105]

The United States Federal Trade Commission (FTC) has recently launched an e-Commerce division, which will be a watchdog agency to fight on-line fraud.ð The agency investigated about 60 Internet fraud cases and will consolidate existing efforts to monitor fraud, deceptive advertising and privacy[106] on the Internet.ð The FTC Commissioner, Sheila Anthony, stated that the FTC wants to be sure that its development reflect basic consumer protection principles that apply in all other media, but in a way that recognizes the dynamic interactive nature of the Internet.ð The Federal Trade CommissionÌs Bureau of Consumer Protection has also put in an e-commerce Internet site on-line to help combat Internet fraud in general where it can identify and track common schemes and educate consumers and businesses about fraud.[107]

ððððððððððð

ðOn June 8-9, 1999 the FTC held a public workshop "U.S. Perspectives on Consumer Protection in the Global Electronic Marketplace".ð In a news release the FTC stated that:

"Global networks have the potential to offer consumers substantial benefits, including convenience and access to a wide range of goods, services, and information at lower cost. But these benefits cannot be realized fully until consumers develop confidence in commercial activities conducted over global networks and businesses are assured of a stable and predictable commercial environment. Accordingly, the present challenge is to encourage the development of a global marketplace that offers safety, transparency, and legal certainty."[108]

Most recently, the Federal Trade Commission (FTC) and its international counterparts participated in a joint sweep, which took steps to warn 1,600 sites suspected of scams to clean up their act or shut down.[109]ð Such internationally coordinated efforts are crucial in monitoring the borderless cyber world, because in most cases, charges against site operators can still only be brought by an entity with jurisdiction in the country where the Website is based, while they can operate in or target citizens of another country.ð For example, pharmaceutical sales sites generally target customers in the U.S. by offering drugs, which are available only with a prescription in North America.ð These sites were mostly set up in Thailand in order to avoid much tougher U.S. drug regulation laws, but many were suspended through joint efforts of U.S. and Thai agencies.[110]ð Washington Attorney General and NAAG President Christine Gregoire said that international agencies Ïintend to develop the tools and cooperative agreements needed to help protect consumers,Ó[111] which should also increase consumer confidence and trust in e-commerce and Internet transactions.

NEW ZEALAND

ððððððððððð Over the next two months (May and June, 2000) New Zealand will be in the process of developing a code of conduct for e-commerce, to protect the rights of consumers using this international, borderless medium.ð New Zealand hopes to establish a self-regulatory scheme with the possibility of starting disciplinary action against offenders.ð The code, based on the Australian model code, will require internet shopping sites to include a physical address, privacy and security policies, details of refund, exchange and complaints policies, as well as to advise customers which laws apply to them.[112]

A Proposal For European Parliament And Counsel Directive On Certain Legal Aspects Of Electronic Commerce In The Internal Market issued on November 18, 1998 intends to meet the European CommissionÌs 1997 communication on creating a European coherent legal framework and reinforce the position of the community in the international discussions on the legal aspects of electronic commerce currently underway with the WTO, WIPO, UNICITRAL and the OECD.

The Directive provides for a number of provisions, which will reinforce the protection of consumers and increase their trust in new services in Europe.ð The proposal attempts to lessen the risk of illegal activities, imposing on operators, information and transparency obligations to allow consumers to take and make well-informed decisions.ð It establishes new guarantees as regard to contractual relations, in particular the obligation to make available to users the means of correcting/handling errors, declaration of the moment of conclusion of electronic contracts, and the requirement that Internet service providers send a receipt evidencing the conclusion of the e-contract.

ð Privacy

ððððððððððð Within the context of GATS and the WTO/GATT principles, legislation in the European community had the effect of potentially creating barriers to trade against non-European community countries.ð Directive 95/46/EC of The European Parliament and of The Counsel of October 24, 1995 on The Protection of Individuals With Regard To The Processing of Personal Data And on The Free Movement of Such Data came into effect on October 1, 1998 with regard to third party countries, who must institute similar levels of privacy and data protection legislation.ð The Directive is intended to protect individual privacy by prohibiting the improper collection, use and transfer of data relating to individuals.ð In accordance with Article 7a of the Treaty of Establishing of the European Community, there are provisions encouraging the free flow of personal data between members states provided fundamental rights of the individuals are safeguarded. The Directive requires EU members[113] to adopt laws to protect personal information, both the public and private sectors, and to block transfers of information to non-member states that did not provide an adequate level of protection. [114]

ððððððððððð Defining the adequacy of the level of protection afforded by the third country, the European community will assess the circumstances surrounding data transfer operation, particularly considering the nature of the date, the purpose and duration of the proposed processing operation or operations, the country of origin, the country of final destination, the rules of law, both general and sectoral, in force in the third country and the professional rules and security measures which are complied with in that country.

ððððððððððð A discussion paper released January 26, 1998 by Industry Canada and the Federal Department of Justice stated, ÏIts Directive has the potential to make the protection of personal information a major non-tariff trade barrier with Canada. Failure to provide adequate protection for personal information may put Canada at risk of having data flows from the European Union blocked.ð Without comprehensive data protection legislation, Canadian businesses may be forced to undertake individual contractual negotiations to show compliance with the EU rules.ð This process will be fraught with uncertainty and could become lengthy and expensive.Ï[115] As trade and commerce is a federal matter, CanadaÌs federal privacy legislation in effect at the time of the Directive only applied to federal government departments, federal agencies and some federal crown corporations and did not apply to either the private sector or the provinces.ð Some Canadian provinces had enacted privacy legislation, with QuebecÌs Act respecting the protection of personal information in the private sector being the most extensive as it applied to data mining and disclosure.ð In order to not be affected by the Privacy Directive it was necessary for the Federal Government to enact legislation.[116]ð The Act is based on the Canadian Standards Associations Model Code for the Protection of Personal Information, which sets down principles for the protection of personal information in the private sector.

ððððððððððð EU and Canada consider that legislative frameworks for the protection of privacy and personal information are a vital component of electronic commerce strategy and beneficial to the evolution of an information society. Internationally, EU and Canada will support a standards-based approach to complement national frameworks.[117]

ððððððððððð The United States was not happy about the attempt of the European Community to erect these trade barriers.ð The Federal Trade Commission and the U.S. Administration is in favour of self-regulation in the area of privacy.ð President Clinton has said ÏWe want to encourage the private sector to regulate itself as much as possible.ð We want to encourage all nations to refrain from imposing discriminatory taxes, tariffs, unnecessary regulations, cumbersome bureaucracies on electronic commerce.Ó[118]

ððððððððððð However, on February 4^th, 1998 the European Commission stated that the European Union would not shut off the flow of electronic trade to or from the United States if the United States does not adopt data privacy laws compatible to the European Unions sweeping directive on data privacy.ð Telecommunications Commissioner Martin Bregman said that Ïif we force the US or any other country to have laws similar to ours it would be Helms Burton in reverse and we do not want that.Ó[119] On March 26, 1998 the White House announced plans to hold a conference exploring Internet privacy issues.ð The goal was to evaluate the administrationÎs current self-regulatory policy.[120]ð In October 1998, the European Union agreed to delay enforcement while the U.S. and EU negotiators worked out an agreement that would allow the EU to recognize as adequate the self-regulatory approach thereby averting a major trade dispute.ð U.S. Undersecretary of Commerce David Aaron said both parties recognize a significant overlap of approach in principle even though the procedures and structures are different.ð U.S. approach is a mix of industry self regulation, regulation and legislation.

On April 19, 1999, the US Department of Commerce issued for review a revised safe harbor principles and a set of 11 frequently asked questions in an effort to provide guidance to U.S. organizations that must comply with the European Union data privacy directive.[121]ð Under these principles, data transmissions to U.S. companies that complied with the principles would not be subject to interference from the 15 European Commission member states.[122]

ððððððððððð On March 17, 2000, the U.S. Department of Commerce and the European Commission reached an arrangement on a safe harbor system, which will allow continuing data, flows between the U.S. and the EU and ensure privacy protection for EU citizen's personal information. Under the arrangement, U.S. organizations voluntarily agree to adhere to "safe harbor" principles, which bridge the gap between the U.S. and EU systems for governing privacy.[123]

See Appendix I for the International Chamber of Commerce ICC Model Clauses For Use In Contracts Involving Transborder Data Flows, suggestions that are intended to assist those who wish to transfer personal data from countries that regulate export of personal data to countries that do not provide protection for personal data or that the source country finds inadequate. By implementing the clauses, international businesses will be taking positive steps in assuring authorities and individuals in a country from which data is being exported that the data will receive an adequate level of protection in the destination country. The clauses also allocate responsibility for the protection of data. The ICC believes the clauses are appropriate contractual clauses for the purpose of Article 26 (2) of the European Directive.

What is happening practically within industry is that many web sites have posted lengthy explanations of what personal information they collect from visitors and how the data will be used.ð However, in many cases these privacy policies are simply disclosures without a commitment to any baseline of standards to actually protect privacy.[124]ð According to a US Federal Trade Commission Survey done in June, it found 92% of 1400 sites surveyed collected personal information about visitors, but only 2% had a comprehensive privacy policy.ð There have been self-policing organizations that have set up ÏSeal CriteriaÓ such as TRUSTe[125] and WebTrust, which is set up by the Canadian Institute of Chartered Accountants.ð These organizations award seals to web sites that meet certain criteria and those which will pass audits.ð Recently, the Better Business Bureau in the United States has entered into this field.

ððððððððððð In 1997 the OECD published a series of recommendations, policy briefs and conference documents relating to electronic commerce. Cryptography Policy: The Guidelines And The Issues was published March 27,1997 to deal with the problems of disparity in policies of member countries in developing and implementing laws relating to cryptography.ð These problems created obstacles to the evolution of national and global information and communications networks, thereby hindering international trade.ð The guidelines are broad in nature and reflect the diverse views of member states. It is interesting that EU Directive [95/46EC] was considered.[126]ð The OECD also recognized that cryptography can be an effective tool for the secure use of information, and failure to utilize it can adversely affect protection of privacy, intellectual property, business information, public safety and national security. The OECD further recognizes that although there are legitimate government, commercial and individual needs, there are also individuals or entities that wish to use cryptography for illegal activities and therefore governments, industry and individuals are challenged to develop balanced policies.ð Therefore they recommended the following:

1. ððððð Their scope would not apply to the responsibilities of governments to protect information in the interest of national security.ð ð(This is in the spirit of the security exception in Article XXI of GATT.)

2. ðCryptographic methods should be trustworthy in order to generate confidence in the use of information and communication systems.ð This will happen with market forces and government regulation and licensing.ð Contracts relating to Ïkey managementÓ should deal with jurisdictional issues.

3. ðUsers should have access to cryptography that meets their needs subject to applicable laws to determine the type and level of security but not laws to limit choice.

4. ðTechnical standards developed nationally should be consistent with international standards.

5. ðNational policies should respect protection of privacy and personal data.

6. ðKey management systems could provide a basis for balancing users and law enforcement issues on access to cryptography.

7. ðLiability for misuse of cryptographic keys and cryptographic services should be made clear by legislation and contract.

8. ðPolicies should be coordinated with other countries and lawful access across borders may be achieved by bilateral and multilateral agreements. [127]ððð

ACCESS TO THE INTERNET

ððððððððððð If States are concerned that their nationals take advantage of the new educational and economic opportunities through the information highway and the Internet in particular, they have to address the issue of universality of access to that highway.[128]ð There are a number of issues involved in solving universal access and they include, both on the domestic and international levels, the following:

1. Access will have to be designed to close the gap between the rich and the poor citizens within States and between developed and developing countries.

2. Infrastructure expenditure will have to be made to accommodate the increased traffic and the provision of broadcasting and telecommunications to remote areas.ð This may be in the form of satellite or other wireless communication or an extensive fibre optic network. Open competition is necessary in the broadcasting and telecommunication industries in order for services to be provided at affordable rates. This should be monitored to determine that anti-competitive behavior would not result in a subsequent sustainable rate increase, thereby affecting accessibility.

3. Effective access to content depends on the speed of access.ð Government should, in cooperation with industry, monitor the deployment of higher speed access so that applications that require it will be available.

4. Make Internet access available in remote areas without long distance charges.ð This may again require different technology than is used in urban areas.

ððððððððððð Some recent statistics show the speed at which the Internet is growing.ð Some 52% of American households have home access to the Internet, according to an August 2000 study by Neilson/Net Ratings.[129] This figure is an increase of 35% from July 1999. Not surprisingly, Americans spend more hours online than their counterparts in Canada, Japan, Australia, Britain, France and Germany combined.ð These statistics show the disparity in Internet use between countries, the so-called "digital divide"[130].ð For example, the penetration rate of Internet hosts for the US is three times the average for the OECD area and seven times the rate of the EU and about 7 times that of Japan[131]. And, within countries, the disparities might be even more magnified as access depends on location, expense and so on.ð As has been discussed previously, Japan is a leader in the technological field yet its citizens do not have adequate access to the Internet. Whether it be a lack of technological advancement, a lack of adequate infrastructure or the absence of a competitive telecommunications industry, the problem is clear. In order for e-commerce to proliferate, access to the Internet must be universal. Thus, it is clear that this is an area that has to be addressed by organizations such as the OECD, the ICC and other international organizations that work to ensure the success of e-commerce. To date, there has been little progress made by these organizations in this area.

ACCESS TO MARKETS

The disparity between developed and developing countries was discussed at the WTO seminar on Electronic Commerce and Development on the 19^th of February, 1999.ð The Deputy Director General, Mr. A. Hoda, felt that electronic commerce would help both producers and consumers in developing countries overcome the traditional barriers of distance from markets and lack of information about market opportunities.ð What is required is a well functioning and modern telecom infrastructure, a satisfactory supply of electricity and access to hardware, software and servers.ð E-Commerce will also help such firms in developing countries eliminate middlemen when trying to sell their products abroad.ðð From a trade law perspective market access has been discussed at the WTO Council for Trade and Services.ð The members have agreed that the principle of technology neutrality applied to GATS commitments, meaning that market access commitments cover the supply of the committed service by all technological means including electronic means. Although only some members had included a specific entry on Internet access services in their telecommunications commitments, many others have not, even though the commitments were intended to cover these services.ð Even though only few members had specific commitments regarding Internet access services, the obligations of the annex on telecommunications on access and use would apply to all other members. [132]

ð CULTURE AND LANGUAGE

On this subject, The Information Advisory Council concluded that many home pages, browsers and search engines tend to point to foreign content first, with the result that Canadian content can be more difficult to find on the Internet.ð Exceptions exist, such as Simpatico, Yahoo Canada and Canoe all of which allow easy access to Canadian content.ð IHAC said despite these notable exceptions, we believe the roots to foreign content are more numerous than those to domestic content.[133]ð Regulation does not represent an appropriate response to the situation.ð They recommended voluntary action by Internet access providers. In recommendation 4.19 they stated that various levels of government should work closely with industry and Francophone communities across Canada to develop a critical mass of French language content and services for the Internet.ð FranceÌs Prime Minister Jospin has proposed that governments place a greater emphasis on ensuring that French speaking nations and French culture are represented on the Internet.[134] [135]

On the issue of multilinguistic communication within the European Union, the European Union issued a communication.[136] Language diversity has been and will remain a cornerstone of European communication cooperation.ð It became more important with the emergence of the global information society where countries try to capitalize on their strong position in certain areas of information and communication services by exporting products and services across the globe.ð The summary of the communication states that the multilingual information society will make it easier for citizens to communicate in the language of their choice, at work or at home.ð It will ensure a strong position for Europe when transferring itÌs own experience and maturity in dealing with a culture in linguistic diverse Europe to even more diverse information society world-wide.

ðWeb site owners should be culturally sensitive. Site advertising and distribution of ÏJunk emailÓ as an advertising vehicle on a non-discriminatory basis particularly with Ïpush technologyÓ may offend cultural mores of users in certain jurisdictions.

In Canada, the federal government with its obligations under the Official Languages Act is required to reflect CanadaÌs linguistic duality in its activities and communications and to provide services in both official languages.[137]ð The Treasury Board developed Internet guidelines. However, the Commissioner of Official Languages felt that there were still steps that could be taken to make access greater in both languages to members of the public and public servants visiting federal web sites.[138]

Individual governments might be able to enact legislation protecting cultural differences and making access by their own nationals easier.ð However, enforcement is an issue of jurisdiction and in federal states, it is also a constitutional jurisdictional issues.ð Quebec has interpreted Section 52 of the Charter of the French Language to apply to commercial advertising over electronic medium.ð This in their view includes a web site as well as advertising material sent by fax or email.ð Quebec considers that they have the jurisdiction to require commercial advertising to be posted in French on the web sites if the vendorÌs products are available to Quebecers.ð The Office de Langue Francaise says that a translation may be provided as long as French is given prominence. [139]ð To establish jurisdiction they are looking at traditional views of head office or place of business in Quebec and are not looking at the technology or how the Internet works to address the solution. For a more complete coverage of this issue, John D. Gregory, Chair Electronic Commerce Project, Uniform Law Conference of Canada has written an article entitled ÏRegulatingðð Languages on the WebÓ.[140]

CONCLUSION

ððððððððððð Overall awareness of the issues has been defined internationally.ð The work of the OECD as a mediator of divergent views is commendable.ð The process of drafting the UNICITRAL Model Law by WTO member states seems to be moving forward, although most have not tabled their legislation.ð The European Union directive has certainly acted as a catalyst in expediting non European Union states that wish to continue trading with the European Union to give privacy some importance on their agenda.ð The spectrum of approaches that various states will take to the solution of electronic commerce issues including privacy is still quite wide. Overall good progress has been made.ðððððð

Appendix I

ð ICC Model Clauses For Use In Contracts Involving Transborder Data Flows

Parties wishing to incorporate the Clauses into their contracts may do so by inserting the following sentence, or a similar one, into their written agreements:

ðððððððððððððð "The parties hereto agree that the ICC Model Clauses For

ððððððððððððð Use In Contracts Involving Transborder Data Flows,

ððððððððððððð Publication No.___ (1998), are hereby incorporated by

ðððððððð ðððððreference in this agreement as if fully set out herein."

Definitions

For the purposes of these clauses (the "Clauses"), the following terms shall have the following meanings:

"The Authority" means the relevant data protection authority in the territory in which the Data Exporter is established;

"Data Controller" means a natural or legal person, public authority, agency or any other body which, alone or jointly with others, determines the purposes and means of the processing of personal data;

"Data Exporter" shall mean the party identified elsewhere in this contract which transfers such personal data to a the country where the Data Importer is situated;

"Data Importer" shall mean the party to this contract as identified elsewhere herein in this contract which receives personal data from the Data Exporter for processing in accordance with the terms of this contract;

"Data Processor" means a natural or legal person, public authority, agency or any other body which processes data on behalf of the Data Controller;

"Personal Data" or "personal data" shall mean any information relating to an identified or identifiable natural person and the personal data the subject of these Clauses is described in Schedule [ð ]] [Appendix][Annex][A] to this contract;

"Data Subject" is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

"Processing" or "processing" shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.ðððððð

"Sensitive Data" means personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.

1. Warranties of the Data Exporter.

The Data Exporter warrants that:

a. The Personal Data to be exported have been collected and processed in accordance with notice, consent or other requirements of all relevant laws of the country in which the Data Exporter is established;

b. Where applicable, it is registered with the Authority and, where required, has provided notice that it exports personal data and/or has received any licence or consent necessary to do so lawfully in the country in which it is established; and

c. Its processing of the personal data, as notified by the Data Exporter to the Data Importer, will not violate any current law or regulation of the country where the Data Exporter is established.

2. Undertakings of the Data Exporter and Disputes with Data Subjects or Data Protection Authorities.

a. The Data Exporter will take such actions as are necessary to ensure it has fulfilled, and will continue to fulfill the warranties set out in Clause 1.

b. The Data Exporter will promptly respond to enquiries from the Authority about the use of the relevant personal data and to any Data SubjectÌs enquiry concerning use of his or her personal data, (including whether the same has been exported by it) and provide the enquirer with the name of the Data Importer and the individual responsible at the Data Importer who will be informed of the enquiry and who will respond to inquiries from its national authorities.

c. The Data Exporter confirms that, on request by the Data Importer, the Data Exporter will supply a copy of the current laws in relation to the data protection applicable in the country where the Data Exporter is established. It also undertakes to notify the Data Importer as soon as possible of any changes to the said applicable laws.

d. In the event of a dispute between the Data Exporter or the Data Importer and a Data Subject or the Authority concerning the Data ImporterÌs processing of personal data, which dispute is not amicably resolved, the Data Exporter agrees to use reasonable efforts to defend the lawfulness of the Data ImporterÌs processing of the Data SubjectÌs personal data through available means of dispute resolution between Data Controllers and Data Subjects, or between Data Controllers and the Authority, as applicable, provided for in the country where the Data Exporter is established. The Data Importer agrees to abide by the decision of the Authority (or other authority or tribunal having jurisdiction of the dispute) with respect to such processing as finally affirmed by the judicial authority to which appeal of such decision may be made, as if it were party to the proceedings. The Data Importer hereby authorizes the Data Exporter to settle any such dispute without recourse to completion of all such formal dispute resolution formalities pursuant to advice of counsel reasonably acceptable to the Data Exporter that such settlement is warranted and reasonable in the circumstances. The Data Importer shall execute and deliver to the Data Exporter any further documents or instruments necessary under the laws of any relevant jurisdiction to give effect to the foregoing.

e. The Data Exporter shall notify to Data Importer, prior to export of any personal data to the Data Importer, the purposes for the use of such data.

3. Warranties of the Data Importer.

ðððððððððððððððððð ððððððððððð The Data Importer warrants that it has:

a. full legal authority in the country where the personal data will be processed to receive, store and process such data, to use it for the purpose(s) for which it has been collected by the Data Exporter, as set out herein, and to give warranties and fulfill the undertakings set out in this Clause 3;

b. in place appropriate technical and organizational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and adequate security programs and procedures to ensure that unauthorized persons will not have access to the data processing equipment used to process the exported personal data, and that any persons it authorizes to have access to the personal data will respect and maintain the confidentiality and security of the personal data; and

c. security programs and procedures under 3(b) above, which reflect the level of damage that might be suffered by the Data Subject as a result of unauthorized access and disclosure and which specifically address the nature of Sensitive Data, where necessary.

4. Undertakings of the Data Importer.

The Data Importer undertakes to:

a. do such actions as are necessary to ensure it has fulfilled, and will continue to fulfill, the warranties set out in Section 3;

b. process the personal data in accordance with the laws of the country in which the Data Exporter is established;

c. provide the Data Subject the same rights of access, correction, blocking, suppression or deletion available to such individual in the country in which the Data Exporter is established;

d. not use the personal data for a purpose not compatible with that notified to it under 2(e) above, or as may otherwise be authorized by the Authority or the laws or any relevant regulatory body in the country in which the Data Exporter is established;

e. use the personal data solely for its own use and not disclose or transfer the personal data to a third party or a third country without the prior consent of the Data Exporter and such consent will not be given unless the Data Exporter is satisfied with all the terms of such disclosure or transfer and that the personal data will receive an adequate level of security after such disclosure or transfer;

f. appoint, and identify to the Data Exporter and to the Authority, an individual within its organization authorized to respond to enquiries from the Authority or a Data Subject concerning its processing of his or her personal data. The Data Importer will deal with all enquiries relating to the personal data promptly, including those from the Data Exporter and the Authority, and in any event within any time frame stipulated by applicable laws in the country in which the Data Exporter is established;

g. submit its data processing facilities, data files and documentation needed for processing to auditing and/or certification by the Data Exporter (or other duly qualified auditors of inspection authorities not reasonably objected to by the Data Importer and approved by the Data Exporter to ascertain compliance with the warranties and undertakings in these Clauses);

h. comply with any changes in applicable laws notified to it by the Data Exporter. In the event it is unable to do so, it shall forthwith notify the Data Exporter and the Data Exporter shall be entitled to terminate this agreement, unless the parties have agreed or forthwith agree to take such steps as shall enable Data Importer to so comply; and

i. notify the Data Exporter of any provisions in its local law, or of any changes in that law, which does or could affect the Data Importer's ability to perform its obligations under these Clauses.

5. Dispute Resolution. Disputes between Data Importer and Data Exporter

ððððð ððððð ððððððððððð In the event of a dispute between the Data Importer and the Data Exporter concerning any alleged breach of any provision of these Clauses, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules.

6. Indemnities

The Data Exporter and the Data Importer will indemnify each other and hold each other harmless from any cost, charge, damages, expense or loss resulting from its breach of any of the provisions of these Clauses.

7. Termination

ðððððððððððððððððð ððððððððððð In the event that:

a. the Data Importer gives notice to the Data Exporter under Clause 4(h) above;

b. the Data Importer is in breach of any warranties or undertakings given by it under these Clauses;

c. the Authority or other tribunal or court in the country in which the Data Exporter is established rules that there has been a breach of any relevant laws in that jurisdiction by virtue of the Data Importer's processing of the personal data, the Data Exporter, without prejudice to any other rights which it may have against the Data Importer, shall be entitled to terminate these Clauses forthwith.

ðððððððððððððððððð In the event of termination of these Clauses, the Data Importer must return all personal data and all copies of the personal data, the subject of these Clauses to the Data Exporter forthwith or, at the Data Exporter's choice, will destroy all copies of the same and certify to the Data Exporter that it has done so, unless the Data Importer is prevented by its national law or local regulator from destroying or returning all or part of such data, in which event the data will be kept confidential and will not be processed for any purpose.

The Data Importer irrevocably agrees with the Data Exporter that, if so requested by the Data Exporter or the Authority, it will allow the Data Exporter or the Authority access to its establishment to verify that this has been done or will allow access for this purpose by any duly authorized representative of the Data Exporter.

8. Data Processors

Where the Data Importer is a Data Processor and the Data Exporter is in the EEA, the following shall apply:

a. the Data Processor will observe the obligations of a Data Controller under the Directive in respect of the Personal Data being processed by it; and

b. the Data Processor shall act only on the instructions of the Data Exporter.

9. Governing Law

ðððððððððððððððððð The laws which shall govern these Clauses shall be the laws of the country in which the Data Exporter is established.

1. In some countries "adequate" may not be the proper term of reference. Persons using the model contact should refer to the appropriate legislative text for the country in question.

2. In the German 'Bahncard' case, involving Citibank, the Berlin Data Protection Commissioner co-operated with the American banking supervisory authorities. The data were transferred pursuant to a contract detailing the data processing arrangements, particularly relating to security and excluded all other uses of the data by the recipient.

ðððððððððððð

[1] Castel , J.G., William C. Graham, Armand L.C. De Mestral, Susan Hainsworth, and Mark A. A. Warner.ðð The Canadian law and Practice of International trade with Particular Emphasis on Export and Import of Goods and Services. 2^nd ed., 1997, Emond Montgomery. Toronto. 2.

[2] As of November 2000.

[3] GATT article 1.1.

[4] GATT article 3.4.

[5] WTO. ÏWTO and GATTÛare they the same?Ó http://www.wto.org/about/facts6.htm.

[6] For a discussion on GATS and TRIPS see http://www.wto.org the WTO site. See also the Authors paper: International Electronic Trade, Carrying out Consumer and Commercial Transactions, Page 21 and Appendix IV, Commerce on the Internet: Legal Issues, Osgoode Hall Law School Continuing Education, Emond Montgomery also reproduced at http://www.saxlaw.com under ÏPublicationsÓ.

[7] Marc Bachetta, Patrick Low, Aaditya, Ludger Schuknecht, Hannu Wager and Madelon Wehrens, Electronic Commerce and the Role of the WTO, World Trade Organization, Geneva, 1998.

[8] http://www.wto.org/english/tratop_e/serv_e/w45.doc

[9] The Interim Report On Electronic Commerce, produced by the WTO Council For Trade In Services, March 17, 1999 and the Work Program On Electronic Commerce, Interim Report To The General Council, Council for Trade in Services, March 31, 1999 reports the following:

ð ÏThe electronic delivery of services falls within the scope of the GATS, since the Agreement applies to all services regardless of the means by which they are delivered,÷ Measures affecting the electronic delivery of services are measures affecting trade in services and would therefore the covered by GATS obligations.Ó

Ï All GATS provisions, whether relating to general obligations ( e.g., MFN, transparency, domestic regulation, competition, payments and transfers, etc.) or specific commitments (market access, national treatment or additional commitments) are applicable to the supply of services through electronic means.Ó

ð÷ÏThere is still a need to clarify whether certain products delivered electronically might be classified as goods, and therefore subject to GATT disciplines, rather than as services.Ó http://www.wto.org/ddf/

[10]ð Electronic commerce as services has been classified under three types of transactionsð (1) Internet access services such as those provided by ISPsðð (2) electronic delivery of servicesð (3) use of the Internet as the medium for distribution services-the sale of goods and services subsequently delivered in non-electronic form. supra page 7

[11] http://www.wto.org/english/news_e/spmm_e/spmm40_e.htmð 31 October 2000

[12] http://www.oecd.org/about/general/index.htm

[13]ð In 1998

[14] The non-member states invited to attend the Conference are: Argentina, Brazil, Chile, China, Hong Kong, Israel, Malaysia, Russia, Singapore, The Slovak Republic, South Africa, Chinese Taipei

[15] The author was fortunate to be a delegate representing Business and Industry Advisory Council (BIAC).

[16] ðOECD Ministerial Conference ÏA Borderless World: Realizing The Potential Of Global Electronic CommerceÓ OECD Action Plan For Electronic Commerce, OECD Directorate For Science, Technology And Industry, SG/EC (98)9/FINAL, page 2, December 22,1998

[17] http://www.oecd.org/dsti/sti/it/INDEX.HTM

[18] See the 1980 OECD Privacy Guidelines at http://www.oecd.org//dsti/sti/it/secur/prod/PRIV-EN.HTM

[19] In furtherance of the Declaration in Ottawa, the OECD has adopted a pragmatic approach and decided, in co-operation with industry, privacy experts and consumer groups, to build an ÎhtmlÌ experimental tool (OECD Privacy Policy Statement Generator ÏGeneratorÓ) based on the OECD Privacy Guidelines.ð It is the aim of the project to encourage the development among public and private organizations in the online environment of privacy policies and statements, and thus contribute to the online implementation of the Openness principle. It is hoped that the widespread display on Web sites of privacy policy statements based on an international instrument, such as the OECD Privacy Guidelines, will foster education among Website owners. It is also hoped that the Generator will increase awareness among visitors about the privacy practices of Web sites which they browse.

[20] The Guidelines for Consumer Protection in the Context of Electronic Commerce, approved December 9, 1999 by the OECD's Council in Paris, are designed to help ensure that consumers are no less protected shopping on-line than they are when they buy from their local store or order from a catalogue. The result of 18 months of discussions among representatives of OECD governments and business and consumer organizations, the Guidelines will play a major role in assisting governments, business and consumer representatives to develop and implement on-line consumer protection mechanisms, without erecting barriers to trade. The Guidelines are non-binding, but reflect existing legal protections available to consumers in more traditional forms of commerce. They are intended to encourage private sector initiatives that include the participation of consumer representatives. They emphasize the need for co- operation among governments, businesses and consumers at both the national and international level. They call for: fair business, advertising and marketing practices; clear information about an on- line business's identity, the goods or services it offers and the terms and conditions of any transaction; a transparent process for the confirmation of transactions; secure payment mechanisms; fair, timely and affordable dispute resolution and redress; privacy protection; and consumer and business education.

[21] Report on the OECD Ministerial Conference, http://www.oecd.org/dsti/sti/it/INDEX.HTM and see also http://www.ottawaoecdconference.org/english/information/outcomes.html

[22] ðA Joint OECD-Private Sector Workshop on Electronic Authentication was held on 2-4 June 1999 in Stanford and Menlo Park, California. The pre-meeting technology primer looked at basic examples of the use of authentication in electronic transactions, including a description of the various technologies and models for electronic authentication and how they work, and a discussion of the role of authentication in electronic transactions. The two-day workshop examined business and government models for implementing electronic authentication; the approaches of different industry sectors; and the requirements for the international operation of global authentication systems. The workshop was aimed at continuing the open dialogue among OECD Member countries on global electronic authentication mechanisms as technologies, business models and policies continue to evolve. The discussion at the workshop was framed around a number of public and private sector case studies that will be used as a mechanism for exchanging information and highlighting developments in the field in order to identify and clarify public policy issues related to electronic authentication.

[23] http://www.oecd.org/subject/e_commerce/ec_progrep.htm

[24] For a description of CISG, See also the Authors paper: International Electronic Trade, Carrying out Consumer and Commercial Transactions, Page 21 and Appendix IV, Commerce on the Internet: Legal Issues, Osgoode Hall Law School Continuing Education, Emond Montgomery also reproduced at http://www.saxlaw.com under ÏPublicationsÓ

[25] In March 2001, The Working Group on Electronic Commerce met in New York to discuss the possible future work in electronic contracting and the CISG. They concluded that the CISG was suitable to contracts concluded by electronic means as well as those concluded by traditional means. Some of the rules such as those relating to effective communication may have to be adapted to an electronic context. They went on to conclude however that the applicability of the CISG to electronically concluded contracts will differ from the question whether the convention covers the sale of Ïvirtual or digitalÓ goods (or services) as these may not be considered sales but rather licences.ð http://www.uncitral.org/en-index.htm

[26]ð UNICITRAL, http://www.uncitral.org/en-index.htm, articles 125-150.

[27] Seminar on Electronic Commerce and Development February 19, 1999, Committee on Trade and Development March 23, 1999 - World Trade Organization WT/COMTD/18 Paragraphs 76 Ò 281.ð Http: www.

[28] Legislation based on the UNCITRAL Model Law on Electronic Commerce has been adopted in Australia, Bermuda, Colombia, France, Hong Kong Special Administrative Region of China, Ireland, Philippines, Republic of Korea, Singapore, Slovenia, the States of Jersey (Crown Dependency of the United Kingdom of Great Britain and Northern Ireland) and, within the United States of America, Illinois. Uniform legislation influenced by the Model Law and the principles on which it is based has been prepared in Canada (Uniform Electronic Commerce Act, adopted in 1999 by the Uniform Law Conference of Canada) and in the United States (Uniform Electronic Transactions Act, adopted in 1999 by the National Conference of Commissioners on Uniform State Law) and enacted as law by a number of jurisdictions in those countries.ð http://www.uncitral.org/en-index.htm

[29] http://www.uncitral.org/en-index.htmðð

Document A/CN.9/WG.IV/WP.88

[30] http://www.apecsec.org.sg

lists all the member states.

[31] http://www.dfat.gov.au/apec/ecom/LEGAL.html

[32]ð The Canadian Electronic Commerce Strategy, page 20 Industry Canada, http://e-com.ic.gc.ca

[33] http://www.alca-ftaa.org/groups_E.asp

[34] http://www.alca-ftaa.org/spcomm/derdoc/ec1de.doc

[35] The Canadian Electronic Commerce Strategy, page 21 Industry Canada, http:// e-com.ic.gc.ca

[36] http://www.ftaa-alca.org/spcomm/derdoc/ec3r3de.doc

[37] Ibid

[38] http://www.pub.whitehouse.gov/WH/publications/html/publications.html

[39] http://www.pub.whitehouse.gov/WH/publications/html/publications.html

[40] http://www.pub.whitehouse.gov/WH/publications/html/publications.html

[41] 15 U.S.C. S 6501 The goals of the Act are: (1) to enhance parental involvement in a childÌs online activities in order to protect the privacy of children in the online environment; (2) to help protect the safety of children in online fora such as chat rooms, home pages, and pen-pal services in which children may make public postings of identifying information; (3) to maintain the security of childrenÌs personal information collected online; and (4) to limit the collection of personal information from children without parental consent.

[42] A final Drafting Committee was held on April 9-10, 1999, at which time the draft was finalized. The UETA was presented to the NCCUSL Annual Meeting in July 1999 and approved and recommended for enactment in all 50 states. A copy of the final version of the Uniform Electronic Transactions Act, approved on October 15, 1999, is available at the NCCUSL web site. (www.mc.com/ecommerce/legis/nccusl.html or www.law.upenn.edu/library/ulc/uecicta/uetast84.htm)

[43] http://www.mbc.com/

[44] January 31, 2000 Rusty Dornin, SAN FRANCISCO (CNN) - The U.S. House of Representatives has approved a bill that would allow U.S. consumers to electronically sign their name over the Internet. In California, as of January 1, a mouse click is all that's needed to electronically sign numerous documents, excluding wills and trusts. Consumer groups in the state have fought to keep paper in the picture under the new law, companies are requiring to follow up foreclosures and other important correspondence with paper copies. The national version of the bill, however, doesn't require a paper trail. "The legal obligation is fulfilled when they e-mail it to you.Ó

[45]see ÏA Preliminary Analysis of Federal and State Electronic Commerce LawsÓ by Patricia Brumfield Fry http://www.bmck.com/ecommerce/ueta-esign.docð for the impact of the federal legislation on electronic commerce on existing and future state law.

[46] ibid

[47] David McGuire, "FTC Supports Senate Spam Bill" available at http://www. Newsbytes.com/news/01/165045.html.

[48] The Brussels Convention lays down common jurisdiction rules for the 15 Member States of the European Union. The Brussels Convention is interpreted by the Court of Justice of the European Communities in a preliminary questions procedure similar to the Article 177 Treaty of Rome procedure, which means that the Convention has an impact on the national legal systems equal to that of European Community law proper.

[49] www.silicon.com/bin/bladerunner?30reqevent=&reqauth=210468&14001reqsub=reqint1=36907.ð Some countries, such as the UK, favour arbitration rather than legislation and support the idea of a European 'ombudsman' for the Internet to adjudicate each case on an individual basis.ð

[50] http://www.security-informer.com/english/crd_rome_416268.html

[51] The Personal Information Protection and Electronic Documents Act was given Royal Assent on April 13.ð It is now S.C.2000 c.5.ð The final version is online at the Parliamentary Web site at: http://www.parl.gc.ca/36/2/parlbus/chambus/house/bills/government/C-6/C-6_4/C-6_cover-E.html Parts 2, 3, and 4 have been proclaimed in force effective May 1, 2000. ðPart1 on privacy will come into force on Jan 1, 2001.

[52] http://www.canada.justice.gc.ca/news/communiques/1998/att_en.html

[53] http://www.ec.gov.sg/

[55] Press release released by IDA and PSB available at http://www.bmck.com/ecommerce/singapore.htm

[56] http://www.cca.gov.sg/

[57] "Singapore law update for net hub" available at http://australianit.news.com.au/common/storyPage/

[58] See Baker & Mackenzie website available at http://www.bmck.com/ecommerce/singapore.htm. See also

[59] http://www.ec.gov.sg/

[60] Approved by the State Council on December 11, 1997 and promulgated by the Ministry of Public Security on December 30, 1997.

[61] Baker, Stewart A. and Hurst, Paul R., The Limits of Trust, Cryptography, Governments, and Electronic Commerce, Kluwer Law International, p. 106-109

[62] Baker, Stewart A. and Hurst, Paul R., The Limits of Trust, Cryptography, Governments, and Electronic Commerce, Kluwer Law International, p. 337 Ò 343

[63] Baker, Stewart A. and Hurst, Paul R., The Limits of Trust, Cryptography, Governments, and Electronic Commerce, Kluwer Law International, p. 109-110

[64] ÏChina Law Makers Call for Information Security LegislationÓ, March 5, 1999 (Beijing) XINUHA News Agency

[65] http://www.ccpit-patent.com.cn/News/2000020402.htm

[66] The proposal is available at http://www.bpicc.com.cn/e-franchise/p35e.htm; Copyright Law of the People's Republic of China.

[67] "Law maker calls for promulgating Telecommunications Law" available at http://www.chinadaily.com.cn/cover/storydb/2000/11/01/it-cntlawcall.html

[68] http://www.miti.go.jp/intro-e/a228101e.html

[69] http://www.miti.go.jp/intro-e/a228101e.html, p. 1-4

[70] http://www.law.kyushu-u.ac.jp/~luke/ecommerce.html

[71] http://www.law.kyushu-u.ac.jp/~luke/ecommerce.html p. 1-5

[72]ð See http://www.nikkeibp.asiabiztech.com/wcs/leaf?CID=onair/asabt/news/99902, http://www.miti.go.jp/intro-e, http://www.lawbytes.com

[73] http://www.zdnet.co.uk/news/2000/44/ns-18967.html

[74] Although one of the most technologically advanced countries, the average citizen has not been educated in the use of the Internet

[75] "Japan passes sweeping bill promoting e-commerce" available at Newsbytes at http://www.newsbytes.com/news/00/158748.html

[76] Cabinet approves E-Commerce bill available at Japan times website at http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nb20001021a4.htm

[77] http://www.law.gov.au/aghome/advisory/eceg/single.htm pages1-3

[78] See also http://www.mbc.com/ecommerce/legis/australia.html for their review

[79] Press release from the National Office for the Information Economy available at http://www.noie.gov.au/publications/media_releases/April2001/ITOL_grants.htm

[80] This Act is available at http://scaleplus.law.gov.au/

[81] See Baker & Mackenzie at http://www.bmck.com/ecommerce/australia.htm#vetb

[82] http://www.iccwbo.org

[83] See below

[84] http://www.iccwbo.org/commissions/marketing/internet_guidelines.html

[85] Press release from the ICC available at http://www.iccwbo.org/home/news_archives/2000/gbd.asp

[86] Global Business Dialogue on E-Commerce (ÏGBDeÓ), Plan of Action 11/17/98

[87]ð See http://www.bce.ca for a more detailed statement

[88]ð http://tbs-sct.gc.ca

[89] For a detailed analysis of the issues, see the following articles: 1. ÏCarving Canadian Income Tax Out of the Information Super HighwayÓ, Pierre J. Bourgeois, CA, Partner International Tax Services, Priceð Waterhous Coopers, LLP (Montreal) Presented to the Strategy Institute Conference December 1, 1998, Toronto; 2. See KPMG Canadian Tax Letter, ÏWeb of Uncertainty - Spinning Tax Policy for Global Internet TransactionsÓ January 1997, ÏWeb of Uncertainty II - Tax Policy Makers Take up the E-commerce ChallengeÓ, November 1997, ÏWeb of Uncertainty III - Revenue CanadaÌs E-commerce Committee Reports, ÏWeb of Uncertainty IIII - Global Consensus Emerging on E-commerce Tax IssuesÓ which are available at http://www.kpmg.ca

[90] IHAC, Information Highway, chapter 3, 3.6

[91] See Steve Suarez, "Introduction To Canadian Taxation Of Information Technology Transactions"

1. [92] Cobb, Peter, Chair of the Jurisdiction Project Tax Working Group of the American Bar Association, Unpublished memo to members

[93]ð Example see Income Tax Act Canada, R.S.C. 1985,Set section 2(1) for residents, 2(3) for non-residents and section 3 income that is taxable and related sections referred thereto.ð

[94] Foreign accrual property income (ÏFapiÓ) coversð rents, royalties, dividends, interest and any other passive income.ð It also covers offshore trading companies unless you can get certain exemptions.ð In the electronic licensing scenarios, Fapi might be attracted. The problem with Fapi is that the income could be attributed to you even though you have not received the proceeds, i.e. it is your offshore company that did.

[95] ITA Subsection 230(1)

[96] ITA Subsection 248 (1)

[97] WTO page 41. See OECD Model Tax Convention on Income and Capital at http://www.oecd.org

[98] Electronic Commerce and CanadaÌs Tax Administration, A response by the Minister of National Revenue to his Advisory CommitteeÌs Report on Electronic Commerce, September 1998. http://www.rc.gc.ca/ecomm/

[99] "Taxing times for e-commerce following OECD announcement" available at Pricewaterhouse Coopers website at http://www.pricewaterhouse.com/extweb/newcoweb.nsf/DocID/128CF4F448B7E1C0852569CB0057AA96

[100] WTO page 41. See OECD Model Tax Convention on Income and Capital at http://www.oecd.org

[101] ibid, page 50

[102]ð Consumer Protection In The Electronic Marketplace, OECD Directorate For Science, Technology And Industry, Committee On Consumer Policy DSTI/CP (98) 13/ REV2 page 2

[103] Ibid, pg 4-6

[104] On November 9, 1999, the Canadian Working Group on Consumers and Electronic Commerce announced the release of a set of principles for the protection of consumers shopping on-line. Principles for Consumer Protection in Electronic Commerce - A Canadian Framework, was developed by a Working Group of Canadian business and consumer organizations and officials from Industry Canada and the consumer ministries of Alberta, Ontario and Quebec. The Working Group was co-chaired by the Quebec-based consumer organization, Action r»seau consommateur (ARC) and the Canadian Marketing Association (CMA). The Principles call for: clear disclosure of a business's identity, the goods and services it offers, and the terms and conditions of sale; a transparent transaction confirmation process; payment security; protection of personal data; restriction of unsolicited commercial e-mail (spam); a fair balance of liability in the event of transaction problems; timely and affordable means of complaint handling and redress; and effective consumer education. They are consistent with the core protections available in consumer law governing traditional forms of commerce. Documents are available on the Industry Canada web site (http://strategis.ic.gc.ca/oca).

[105] ÏDraft Declaration on Consumer Protection in the Context of Electronic Commerce Organization for Economic Cooperation and DevelopmentÓ, Directorate for Science Technology and Industry, Committee on Consumer Policy, DSTI/CP (98) 12 REV2.

[106] In the United States Consumer Protection and Privacy are under the FTC jurisdiction.

[107] Zaret, Elliott, MSNNBC, ÏFTC Launching E-Commerce DivisionÓ, WYSIWYG://65/http://www.msnnbc.com/news/261140.asp. See the site at http://www.ftc.gov/bcp/menu-internet.htm

[108] http://www.ftc.gov/bcp/icpw/index.htm

[109] www.nytimes.com/library/tech/00/03/cyber/articles.24scam.html

[110] Matthew Pennington, ÏInternational CrackdownÓ www.abcnews.go.com/sections/tech/DailyNews/omlinedrugs000321.html

[111] www.ftc.gov/opa/2000/03/rich.htm

[112] Clare Blackburn, "New Zealand seeks to protect online consumers," Total Telecom, April 20, 2000

[113]ð As of 11/01/2000, the European Commission is taking five EU member states to court for not implementing data protection rules. France, Ireland, Germany, Luxembourg and the Netherlands will all go before the European Court of Justice. They are accused of not implementing the EU Directive On Protection Of Personal Data, which aims to build consumer confidence and bringing member states« data protection rules closer together. Anyone who has suffered from the non-implementation of the directive can seek compensation from national courts. http://www.theregister.co.uk/index.html

[114]ð EU Directive.ð 95/46/EC articles 1.2 and 25.1

[115] BNA Electronic Information, vol. 3, no.5, 149; Industry Canada http://strategis.ic.gc.ca/privacy

[116] Bill C-54 then Bill C-6 An Act to support and promote electronic commerce by protecting personal information as collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statutory Revisions Act. The Personal Information Protection and Electronic Documents Act was given Royal Assent on April 13.ð It is now S.C.2000 c.5.ð

[117] See EU-Canada Joint Statement, www.e-com.ic.gc.ca

[118]ð U.S. Information Service, ÏCurrent Issues: Economy and Trade: Clinton Remarks on Electronic Commerce Report July 1^st 1997 (Note: there is a Bill R/98 before the Congress; Consumer Internet Privacy Protection Act 1997)

[119] BNA Electronic Commerce and Law Report, volume 3, no.6, 177.

[120] http://www.Legalnews.findlaw.com/ (see also the ABA Digital Signature Guidelines 3. 8.1)

[121] The International Safe Harbor Privacy Principles, Frequently Asked Questions on access and the US/CEC Data Privacy Dialogue Draft Paper on EU Procedures documents, are available on the Department of Commerce World Wide Web site, http://www.ita.doc.gov/media

[122] BNA, Electronic Commerce & Law Report, Washington, D.C., Vol. 4, No. 16, p. 332-333

[123] http://www.ita.doc.gov/td/ecom/menu1.html

[124] Mark Rotenberg, Director of The Non-Profit Electronic Privacy Information Centre in Washington, http://www.epic.org. He is promoting a new law that would require sites to allow consumers to access and correct any personal information stored by companies and establish penalties for firms that misused data or failed to abide by posted privacy policies.

[125] http://www.etrust.org

[126] See PRIVACY

[127] http://www.oecd.org/dsti/sti/it/secur/prod/GD97-204.htm

[128] IHAC, Information Highway, chapter 4 ÏAccess: Cornerstone of the Information SocietyÓ. http://strategis.ic.gc.ca/SSG/ih01642e.htmlðð page 1 introductory quote: Ïð ÷ the Information Highway should be at least as accessible, affordable, and relevant to Canadians as telephone and television services are today.Ó

[129] "RL30435: Internet and E-Commerce Statistics: What they mean and where to find them on the Web" available at http://www.cnie.org/nle/st-36.html

[130] http://www.oecd.org/dsti/sti/it/cm/prod/localaccess.htm

[131] same as 178 but these statistics are from July 2000.

[132] (see page 7 of 10)

[133] CRTC Information Highway, chapter 4, recommendations 4.17 - 4.19

[134] BNA, Electronic Commerce & Law Report, Washington, D.C., Vol 3 No. 4, p. 101-102

[135] In June 1998 Vice President Al Gore and French President Jospin committed the U.S. and French governments to the principles of open access to information and the free flow of culturally and linguistically diverse content: US Government Working Group on Electronic Commerce First Annual Report, November 1998.

[136] Document COM (95) 486 of November 8, 1995, the final being issued in OJL306 of November 28, 1996 supplanted by the decision of the European Council.ð http://www.echo.lu/

[137] Official Languages Act,

[138] Use of the Internet by twenty federal institutions, Commissioner of Official Languages (Ottawa Supply and Services Canada, December 1996). Also IHAC, chapter 8, page 3 of 6, http://www.strategic.ic.gc.ca/SSG/ih01646e.html

[139] Quebec Language Law and Web Sites, http://www.olf.gouv.qc.ca

[140] Unpublished