Cryptography Reference
In-Depth Information
of international commercial law.” In 1996, the Commission's electronic
commerce working group published a Model Law on E-Commerce with
the aim of broadly facilitating “the use of modern means of communica-
tions 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.”
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Model Laws are meant to serve as “ready-to-enact” legisla-
tion, transposable by legislatures in their national context with little
modification.
The Model Law on E-Commerce introduced several influential concepts
and analytical strategies. The most important one is that of
nondiscrimi-
nation
, which states that “information shall not be denied legal effect,
validity or enforceability solely on the grounds that it is in the form of a
data message.”
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That is, to dismiss electronic evidence, courts must rely
on other criteria than its mere electronic nature. The Model Law further
proposed that within statutes of evidence law, three requirements typically
prevent the realization of the nondiscrimination principle: the obligation
to provide information in the form of
written document
, the obligation to
sign
such documents, and the obligation to provide
originals
. To overcome
these obstacles, the Model Law suggested the definition of “functional
equivalents” to writing, signature, and originals, “based on an analysis of
the purposes and functions of the traditional paper-based requirement
with a view to determining how those purposes or functions could be
fulfilled through electronic-commerce techniques.” For each requirement,
the Model Law defined the following functional equivalents:
1.
Writing
“Where the law requires information to be in writing, that
requirement is met by a data message if the information contained therein
is accessible so as to be usable for subsequent reference.”
2.
Signature
“(a) The signing method must enable one to identity the
signer, and indicate that the signer manifests his consent; (b) the trustwor-
thiness of the signing method must be proportional to the value or object
for which the data message was created in the first place” (principle of
proportionality).
3.
Originals
“A data message is considered to be an original if there
is (a) a reasonable guarantee as to the integrity of the information from
the moment of its creation, and (b) the information can be shown to the
person who requires it.”
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