THE LEGAL ASPECTS OF ELECTRONIC GOVERNMENT IN PACIFIC ISLAND COUNTRIES: A REFLECTION[*]
MOHAMMED L.
AHMADU[**]
The main aim of the article is to examine the legal aspects of the structures which support the operations of e-governments and the extent of their adaptability to the circumstances of Pacific island countries. The article does not therefore intend to discuss the theories of governance or the ongoing debates on the pros and cons of good or effective governance in the region because they are outside the scope of this article.
The initiatives for regional cooperation and integration as envisaged in the Pacific Plan, particularly on the implementation of a regional digital strategy for enhancing information and communication technology will have direct bearing on the future development of e-government structures in the region. Furthermore, the wider strategic objective within the Plan of improving transparency in the governance, management and use of national and regional resources resonates with the idea of e-government acting as a facilitative tool to achieving that objective.
It is against this general setting that Part II discusses the general features of the legal regime supporting information and communication technology in some selected countries in the South Pacific. Part III examines the legal mechanics of Internet technology and how the architecture of the Internet may impact on electronic government structures. Part IV looks at the definition of e-government in relation to the some underlying theoretical issues. Part V examines the types of e-government structures. Part VI discusses the cost and benefit of e-government and Part VII concludes the article.
LEGAL REGIME OF ICT[1]
The state of laws governing ICT in the region is as varied as the countries themselves. It is therefore impossible to provide one standard framework which appropriately reflects the circumstances of all island countries. However, a selection of the countries will give an indication of the current state of affairs and what may be needed in the future, especially in relation to the development and operation of e-government structures.
To begin with and by way of example, in all countries of the region, public procurement (which an important government activity) is still carried out through conventional contractual arrangements. At the moment no electronic version is contemplated except possibly in Vanuatu. To provide a fairly representative regional view of the prevailing situation, this segment will focus on Kiribati, Vanuatu, Tonga, Samoa and Fiji.[2]
A. Kiribati
There is at present no national ICT policy in operation. In the area of intellectual property there is the Copyright Ordinance[3] but this offers no recognisable protection for computer software or programs. The situation in Kiribati manifests an extreme case scenario in the South Pacific, possibly drawing countries like Tuvalu and Palau into its fold.
B. Tonga
The Kingdom has published a Communications Policy Statement in 2000. It has also embarked on policy revisions in the area of ICT with a view to possibly including online economic activities. Other matters still under consideration include the civil service IT strategic plan, legislation on electronic signatures and authentication of network users' identities and international cooperation on security on cyberspace issues.
It is also worthy of note that a new Communications Act was passed in 2000 and substantial amendments were made to the previous legislation covering radio, telegraph and broadcasting to take into account the use of digital broadcasting technology. Tonga has a national ICT consultative committee and the Tongan Telecommunications Corporation oversees the management of the country's DOMSAT.
C. Fiji
There is at present no comprehensive national ICT Policy. However, departmental level initiatives support a number of government information portals. There is a properly equipped and functional government ICT centre that services the IT needs of the government. The Southern Cross fibre-optics communications cable linking Fiji with the United States of America, Australia and New Zealand has been completed, allowing for high-speed data exchange and digital communications between these countries. The cabinet had in 2001 also discussed a paper on e-governance. There is a copyright law[4] in existence and e-commerce and ICT-related laws are to be passed in the not distant future.
D. Samoa
There is no specific national ICT policy at present. However, through a number of initiatives, the government is able to support limited government information portals. An ICT steering committee was formed in 2002. A number of associated laws have been amended.[5]
It is worth mentioning that Samoa in 1997 amended its Communications Act to encourage the operation and development of Internet services in the country by transferring to the Post Office, the property held by the defunct Pacific Internet Services Limited.[6] Aside from this, there is nothing at present even in policy formulations to indicate a move in the direction of evolving a coherent national ICT policy.
E. Vanuatu
There is at present no integrated national ICT policy, but existing initiatives are adequate to support limited government portals (mainly for financial and commercial information). Importantly however, Vanuatu has passed two laws dealing with electronic commerce. These are the Electronic Transactions Act 2000 and the E-Business Act 2000.
The Electronic Transactions Act is aimed at regulating the increasing pace of electronic transactions, which are in vogue today.[7] This is primarily due to the emerging trends in the use of IT in the conduct of business dealings arising from the status of Vanuatu as an offshore centre. The law deals with the legal requirements of electronic records; communication of electronic records; electronic signatures; encryption and data protection; and intermediaries and e-commerce service providers. These emerging aspects of e-commerce are now regulated in Vanuatu.
The E-Business Act is aimed at complementing, in a general sense, the conduct of electronic business transactions. However, the scope of the law is limited to electronic businesses carried out by international companies.[8] It is not of general assistance to all types of online contracts or transactions. The law covers cyber-suite contracts; electronic business contracts; cyber-suites and e-business accounts.
As earlier pointed out, the laws in Vanuatu are not part of a national IT or e-commerce policy strategy of the government. There is some progress. However, the current initiative is limited to private sector needs, which in any case have also been confined to the banking, Internet gambling and casino sectors of the economy.[9] At least for now, there is no public sector support towards ensuring that a technological foundation emerges to complement the laws in this area. But the extent to which Vanuatu has recognised the need to pass these laws and is preparing to be integrated in the global information revolution, even if progressively indicates that the country is looking forward to developing the necessary integrated national infrastructure for e-commerce.
Given this scenario, it is clear that island countries still have a lot to do in terms of policy initiatives and investments if they are to establish the necessary infrastructure for the conduct of e-commerce and the conduct of e-government. Except for Vanuatu, where the legal framework has been established, Samoa, Fiji, Tonga, Kiribati and the others need very specific laws to deal with the various aspects of this new phenomenon. The advantages of e-transactions are not restricted to the private sector. The public sector will have much to gain by engaging in it as well. For countries with limited resources, technological base and expertise, the benefits of e-government structures in administration and democracy cannot be underestimated. To realise these benefits, countries within the region have to inaugurate viable legal frameworks for electronic transactions.[10]
LEGAL MECHANICS OF INTERNET TECHNOLOGY[11]
Because e-government cannot effectively operate without the corresponding supporting technological structures, it is also important that a discussion on the relationship between the various mechanisms is examined. The primary vehicles for the development of effective e-government structures are digital technology and the Internet.[12]
Internet technology provides the primary mechanism through which wide-spread electronic transactions can be conducted with relative push-button ease. The technology is particularly relevant to the situation of small island states of the South Pacific because of their remote geographical location, dispersed settlements and limited infrastructure. As will later be demonstrated, these constraints are not always necessarily disadvantages.[13]
Other secondary issues relate to policy initiative and the reluctance by civil servants to embrace the benefits and opportunities created by e-government procedures for effective public administration. As observed in the e-Government Newsletter of Singapore:
The Internet presents the possibility of re-engineering government services
to better serve the public. However, no matter how sophisticated our e-services
are, it would defeat the purpose of providing these services if a large segment
of our population is unable to access them. All government offices where
appropriate, should also provide facilities for public access to
e-services.[14]
Electronic
transactions, including the setting up of e-government structures and the use of
the Internet[15] to facilitate
transactions illustrate a marriage of convenience between law and technology.
While the medium or vehicle through which such transactions are conducted is
provided by technology, the rules for validating and enforcing the transactions
are supplied by the law. In this area, it is impossible for the law to exist
independent of the technology and vice versa.
To this extent, a brief
exposition of how the Internet works is useful in providing a rudimentary
understanding of the operation of the system.
A. Internet
Architecture
The Internet provides an open channel of electronic
communication covering vast distances, using complex technology and equipment to
transmit or exchange data, voice or video clips between multitudes of computers
all connected in a global communications network system. In this regard, the
Internet has appropriately been described as communications
technology.[16]
Information sent
from one computer to another via the Internet is transported through several
servers at random by using the most efficient route until it finally reaches its
intended destination. The information is at the point of despatch broken into
“packets” during transit, but reassembled into its original form at
the point of receipt. For the information to be transported through the network,
a protocol must be used the most important being the Transport Control Protocol
(TCP).[17] The Internet Protocol
(IP) determines what server should receive the “packet of
information” for onward transmission. To access the Internet via any
website,[18] the user must indicate
the correct Uniform Resource Locator (URL) to visit.
To host a website
would require the hosting agency to register a domain name. The use of this
technological infrastructure means that at any given time, multiple copies of
packets of information are temporarily copied by different servers in different
locations worldwide. Of course, the physical location of each server depends on
the routing. Emails are regulated by means of other application protocols,
namely the Simple Mail Transfer Protocol (SMTP) and the Post Office Protocol
(POP).[19]
In dealing with the
technological aspects of the Internet as a vehicle for online transactions, the
legal effects of the technology and operations involved need to be examined.
Using with the Internet for purposes of online transactions would require the
establishment of a domain name,[20]
especially from the point of view of the supplier of goods or services, whether
in the public or private sector.
Generally speaking, the contents and
ownership of the domain name may have nothing to do with the trademark
protecting the domain name. The website and server hosting services are normally
handled by an Internet Service Provider (IPS). Servers may crisscross different
jurisdictions or transmit or exchange information passing through a number of
converging or diverging legal systems. From a legal standpoint, the role of such
intermediaries also needs to be taken into account. This is particularly so when
the issue of client-server technology is brought into the picture. It is now
possible for a user to obtain information indirectly from a third source-
generally called re-user access.[21]
Because Internet communication is conducted through computers and equipment,
user identification becomes a
problem.[22] This requires a
two-fold solution- namely legal and technical.
Technologically speaking,
domain is the Internet name and
address.[23] The website forming the
domain name may contain information whether
copyrighted[24] or not and may also
have on it trademarks. The domain name may in some cases be a registered trade
mark itself.[25] Where this
information is accessed and downloaded by different users at different
locations, issues of copyright infringement are likely be a source of legal
concern.[26]
As far as the
informational contents of the domain are concerned, infringement of copyright or
trade mark may be sustained if such written material enjoys copyright or
trade-mark protection. While in normal situations exceptions to copyright may be
justified, the position is not so settled in the case of Internet-based
materials.[27] There may also be
the problem of determining the appropriate jurisdiction where the infringement
took place and the proper law to apply. Where the domain name or address is
non-country indicative, it is extremely difficult to determine the actual
location of the breach.[28]
In
addition, servers or hosts that help transmit accessed or downloaded information
from websites may themselves have to make several temporary copies of the
packets of information in the course of transmission from one end of the network
to the other. Cache or mirroring processes may in this regard equally raise the
potential for some legal
concern.[29] In this instance, it is
possible for the intermediary Internet service provider to be liable as a
publisher.[30] But again, unlike in
traditional written materials, the act of the IPS in making copies or publishing
information is an unconscious one because of the automated processes involved-
necessitated by the advent of digital technology. In view of the fact that
servers are programmed to take decisions without direct human
involvement,[31] the best way in
which to avoid liability is to publish disclaimers on
web-pages.[32]
Given these
developments, it is obvious that the architecture of the Internet will impact on
the way e-government structures are to be conceived, established and managed.
This brings to fore some challenges which touch on the legality of electronic
evidence, automated decision-making and the appropriate forum for settling
disputes created by these technological complexities. These are practical
realities which the region needs to address.
DEFINITION OF
E-GOVERNMENT
As it is with any phrase, “e-government” can be
amenable to different definitions, depending primarily on one’s
perspective or viewpoint. In general however, this paper defines it as a process
of public administration and the provision of government services through the
use of information and communication technology. This definition is wide enough
to cover the use of facilities provided by the Internet, intranet and extranet
communication systems.[33]
The
general idea behind such a wide definition is to ensure that the resultant
e-government structures are in a position to facilitate effective public
administration within national or local government sectors.
A.
Theoretical Issues
In discussing the legal aspects of the structures
supporting e-government, a number of theoretical underpinnings become
immediately apparent: firstly, because of the nature of digital technology as a
facilitative medium;[34] and
secondly, because of the legal effects of the decisions reached in relation to
the nature of the supporting electronic structures.
Without electronic
systems, processes and decisions of governments are usually effected manually.
However, the introduction of e-government will equally bring with it the need
for decisions to be automated. Thus, the extent to which a merger of
conventional and automated decision-making processes is to be established and in
what specific areas of public administration are crucial to understanding the
legal effects of e-government
processes.[35] This also raises
another issue- the legal effect of the interface between manual and automated
decisions.
The introduction of e-government will also significantly impact
on the normal working environment. The conventional working environment (which
usually is defined by physical space and interactions) will now be replaced by
either a virtual working environment or a combination of the two. The extent to
which public sector employees are or can adequately be prepared for this
transition also needs to be carefully examined.
It is also obvious that
because departments of governments are structurally different and perform
different functions, the level of e-readiness might not be uniform across the
various levels of staff and between departments. To that extent,
interoperability or the interface of the different e-government systems within
and outside the public sector creates additional legal and security
dilemmas.[36]
The establishment
of e-government needs to also focus on the difficulty of clearly delineating the
boundaries between the legal effects of automated as against those of the
conventional executive and judicial decisions. A crucial question to ask is -
where should the responsibility for such decisions lie. On machine or human or
on both?
E-government structures help to facilitate meaningful civic
dialogue and engagement between the public and government officials. This is
healthy for effective governance and transparent administration. The need for
this sort of engagement is no better needed than in island democracies with
multiparty politics.[37]
TYPES OF E-GOVERNMENT STRUCTURES
In this paper, there are four
basic structures which e-government in the Pacific could take. These are:
Information Portals; Legal Services Portal; Judicial Services Portal; and
e-Voting Portal. Of course, the circumstances in individual countries might
dictate what is or can be added to these initial e-structures.
A.
Information Portal
This is by far the commonest e-government structure
available. The rapid development of information and communications technology
has brought with it the need for faster and easily accessible information on
government functions and institutions in primarily two areas:
(a) Ministries,
departments and statutory boards are generally expected to provide their email
addresses and to also host websites detailing their functions and
responsibilities. These sites could also act as information hubs on a wide
variety of government services by providing information on investment
opportunities, tourism potentials, health, and environment, to mention a
few.[38]
(b) Electronic filing of
government documents, processing of on online permits, electronic tax payments
and the submission of online public employment applications, to mention a few,
will minimise wasting time on long queues and in getting mired in bureaucratic
red-tape.[39]
While the first
portal is merely informational, the second is both informational and interactive
allowing for valuable processes to be completed online, thus saving a lot of
precious time. In general, portals cover the activities of the three arms of
government, namely the executive, legislature and the judiciary.
B. Legal
Services Portal
The provision of legal services to citizens should be
distinguished from judicial functions performed by the courts. The emphasis here
is on information, advice or materials that will improve access to justice. The
recipient of such information, advice or materials will then be in a more
informed position to process their rights. Three areas outline these
e-government structures:
(a) Free-access online laws and regulations to help
litigants who represent themselves in court or who may want to acquire a basic
and rudimentary understanding of legal processes. This includes the provision of
wider public access to legal materials and advice in form of online legal aid
and assistance.[40]
(c)
Electronic law reporting which covers statutes and judicial decisions made
freely available to the general public.
[41]
(c) Online legal opinions to
support the provision of legal aid and community legal service which may be
automated, interactive or manually operated but processed
online.[42]
C. Judicial
Services Portal
The role of the judiciary as a constitutional arm of the
government and an independent and impartial arbiter of disputes forms the third
organ of e-government. The role of the judiciary in upholding the rule of law,
good governance and democracy cannot be over-emphasised be it in developed or
developing countries. The importance of the role is more pronounced in island
countries, which in addition to the demands of modernity are at the same time
also expected to integrate and balance customary practices in their ways of life
or even in some cases in the governance of their communities. For this reason,
the role of e-government in relation to the judiciary is manifested in three
main areas:
(a) Information and communication technology supporting systems
for the recording of customary or formal court proceedings and filing of
non-contentious court documents.[43]
(b) The development and use of laws of procedure which support the admission
of electronic evidence in civil and customary law claims and as a basis for
settling such disputes.
(c) The use of automated electronic judicial
decisions without human interface- a future possibility?
[44]
D. E-Voting
Portal
Another important aspect of e-government is an e-voting system.
The conventional and manual voting system has it strengths and will for some
time to come continue to hold sway. However, attendant problems associated with
vote rigging, falsification of election results and general apathy towards the
conventional voting system may in the long run help popularise the electronic
alternative. An e-voting system is also not without its problems, particularly
when viewed in the context of some countries in the region. However, it is worth
mentioning that these problems are by no means only confined to either the South
Pacific or to developing countries.
In the context of Pacific island
countries, issues relating to digital access and digital divide between urban
and rural settlements, problems of security of electronic votes and counting
procedures and the security of e-voting systems in terms of authenticating
signature and identity need to be addressed
first.[45] To establish the
integrity of an e-voting system as an integral part of any e-government
structure, it has been argued that it must in addition to all other safeguard
and security measures also leave a paper
trail.[46] The cost and operational
implications of this requirement will be enormous for countries with limited
national budgets.
COST AND BENEFIT OF E-GOVERNMENT
An understanding
of what is to done to ensure that e-government is effective and meaningful to
the lives of people also requires an analysis of the problems and prospects of
the system. It is against this background that the following points are
discussed.
A. Cost of Software and Equipment
The cost of software
and equipment is fundamental and is one that will severely impact on the
progressive development of e-government in the region. At the moment except for
a few countries, the vast majority have no specific national ICT policies in
place. To that extent, the creation of a knowledge-based and computer literate
society does not represent an immediate priority for such governments. This
trend needs to be reversed: by prioritising information and communication
technology; the development of supportive legal framework; and the granting of
appropriate incentives to the private sector to support electronic transactions
both at the public and private sector
levels.[47]
B. Limited
Bandwidth and Speed
While this is a problem, it is by no means confined
only to Pacific island countries. Across the world, citizens generally suffer
from this constraint which impedes the rapid download of data, voice or video
transmissions. This also clogs the Internet highways and prolongs the time spent
on accessing information on the Internet, thus negatively impacting on the
availability of e-government services and products.
C. Access to
Government Services
The establishment of appropriate e-government
structures in the form of portals for online legal, judicial, corporate and
voting services will go along way in improving the scope of access to government
services. It will also speed up the utilisation of these services by the general
public in view of the relative speed with which these can be processed. This is
good not only for the economy but also helps in improving the quality of
government services.
E-government structures have the capacity to improve the
provision and delivery of government services. This will be a plus for democracy
in that it can also promote good governance and transparency by linking public
and private sectors online.[48] The
opportunities offered by the Internet need to therefore be fully tapped by the
public sector in the region. According to Toland and Purcell:
South Pacific governments can use the Internet to assist with public sector
operations. For example, ICT can provide governments with an increased capacity
to collect revenue from fishing, agriculture and tourism. An intranet can allow
different government departments to share information without having to make it
available to the general public.[49]
D. Opening up Rural Communities
The establishment of
e-government will foster development opportunities in rural communities. It has
been asserted that this will also promote civic engagement between public
government officials.[50] This is
especially necessary in remote and rural communities which are far-removed from
the main municipal and administrative centres of national governments.
E-government structures will assist in bringing government services closer to
the people thereby leading to effective governance because of transparency,
greater and freer flow of public
information.[51] According to
Chowdary, ‘information and knowledge are what enable individuals to
develop intellectually and
economically.’[52] The
dispersed nature of island communities makes them ideal candidates to greatly
benefit from the potentials of information and communication
technology.
E. Attendant Risks
Continuous dependence on computers
and related equipment and software may lead to associated physical and health
risks. Although there is at present no evidence of this epistemological trend in
any island country, it is time to begin considering appropriate policies and
laws that will guard against that. The extent to which this may present
significant occupational health problems in the region, only time will tell.
However, it is still doubtful whether existing health, safety and occupational
laws in the region can effectively deal with this new
threat.[53]
F. Technical
Issues[54]
These generally
relate to security, data integrity and privacy. These issues are very
crucial not only to the development, but also to the operations of e-government
structures in the region. Because decisions governing various aspects of peoples
lives are automated, the source and authority of decisions made online must be
easily identifiable. This will be addressed in four ways:
(i) Security
The use of technology to transact online has brought with it the problem
of user-identification.[55] This is
particularly so because of the remote nature of the transaction, the physical
distance separating the parties and the ability to make instantaneous changes to
electronic documents with little or no trace of detection. The cost-factor
associated with putting in a place a reliable e-identification system will for
some time to come make the technology suspect, at least from a legal point of
view and particularly in the context of countries in the region. Perhaps a way
forward for countries in the region is to set up a regional authentication
agency which will integrate, optimise resources and save costs.
(ii)
Signature Authentication
Flowing from the foregoing is also the problem
of writing and authenticating digital signatures, which is equally very crucial
to e-government operations.[56] The
use of private and public keys encoded in electronic documents to authenticate
or validate electronic transactions is widely regarded as a means of
safeguarding the integrity of online transactions and business deals. While
encryption technology is also aiding the process of authenticating digital
signatures,[57] appropriate laws
will however be needed to support the transition from conventional to electronic
signature systems.[58] At present,
almost all countries in the region are behind and need to catch-up by
promulgating suitable laws to deal with issues pertaining to digital signatures;
privacy of online public records and computer crimes, to mention a few.
(iii) Data Integrity
There are other problems associated with
creating and managing ‘round the clock’ electronic databases,
whether for public or private sector
use.[59] A fundamental issue here
relates to data integrity. It is of utmost importance for the database to be
accurate and up-to-date because it
[60] helps to prevent fraud and
unauthorised access or misuse.[61]
Because e-government structures aggregate and process enormous amount of
data and do so from different sources, the integrity of electronic records must
therefore be of utmost consideration in the establishment and management of
reliable online government systems and services.
(iv) Certification
Authority
It is difficult for a single country to establish and manage a
national certification authority[62]
to process digital signatures as a means of validating automated public
decisions. There are financial and technical issues associated with the storage
of digital signatures and the protection of such databases from viral and other
attacks. For a certification authority to be a reliable manager of digital
signatures, it must eliminate the major risks for using these signatures between
the sender and recipient.[63]
Countries in the region need to put in place coherent national policies and
legal frameworks to address the establishment and management of national digital
certification agencies. In the alternative, stakeholders may consider
establishing a regional certification facility to serve this
need.
CONCLUSION
The future development of online government
structures and services needs to perhaps take into account the setting up of
subsidised solar-powered public Internet Kiosks for accessing data and for
general public use. These can strategically be located in both rural and urban
areas to facilitate access to information on government functions and public
resources. The prohibitive cost of Internet access in the region is certainly
not conducive to the long-term development and provision of effective online
government services.
The level of enlightenment programmes on e-readiness is
virtually nil in the region. The current curricula in schools need to be
re-aligned to take into account the benefits as well the dangers of ICT. This
campaign can also be instituted at different levels of the society and using a
variety of media in order to prepare people to be part of new technologies.
Sometimes unfounded resistance to new and emerging technology is likely to
constitute the greatest obstacle to the future development of public online
systems in the region more than any single factor.
The technology to be
introduced must accord with each country’s level of development. The
systems must also be such that can be serviced and maintained locally as much as
it is practicably possible. The use of appropriate technology in the design and
operation of e-government structures will count as an important pre-requisite
for the success of these systems in South Pacific island countries, and
generally in other developing countries.
E-government is not and cannot be
a complete replacement of the conventional system of public administration. It
is to be seen more in the context of being a complementary approach to the
existing government structures. This vision is to underline any national policy
initiative which countries in the region are to adopt in pursuing their overall
development strategies.
Lastly, the development and use of e-government
structures is not without some practical challenges. However, the benefits for
countries in the region will be far out-weigh the cost especially in this era of
political and economic globalisation.
[*] A revised version of a paper presented at the Fifth IIDS International Conference on Governance and Development, December 1-4 2005, University of the South Pacific, Fiji.
[**] LLB (Hons), LLM (Lagos); LLM (Warwick) Ph.D. (USP); Associate Professor of Law, University of the South Pacific.
[1] This segment is partly based on: Mohammed L Ahmadu, “Overview of the Regulatory Framework for E-Commerce in Selected Pacific Island Countries” in Harmonized Development of Legal and Regulatory Systems for E-commerce in Asia and the Pacific: Current Challenges and Capacity Building Needs, Studies in Trade and Investment No. 54, UNESCAP Reference No: ST/ESCAP/2348 (28 December 2004). The laws and policies governing the regional ICT frameworks cited here were as at June 2002. See also, Mohammed L Ahmadu, “E-Procurement as a Development Imperative in Small Island States in the South Pacific’ (2003) 10 James Cook University Law Review 51-70.
[2] The countries are drawn from Melanesia, Micronesia and Polynesia.
[3] Cap 16.
[4] Copyright Act 1999.
[5] These include: Post and Telecommunications Internet Act No 27 1997; Postal and Telecommunications Act 1999; and Copyright Act No 25 1998.
[6] See Posts and Telecommunications Internet Act No 27 1997; Cf Communications (Amendment) Act No 251 (2000) Niue. It amended the Communications Act 1989 by designating the ownership and management of the country’s top level domain code, NU.
[7] This includes the practice of
telemedicine.
[8] The domestic
counterpart is the Companies (E-Commerce Amendment) Act No 27 2000 which
amended s 378 of Cap 191. See also the International Companies (E-Commerce
Amendment) Act 2000 which amended s. 10 of the International Companies
Act No 32 1992.
[9] These are also offshore transactions.
[10] These may include, for example: (a) a Computer Misuse Act or Computer Crimes Act, or extensive amendment to the extant Penal or Crimes Act; (b) a Digital Signature Act or amendment to the Evidence Act; and (c) Digital Telecommunications or Multimedia or Telemedicine Acts, if and when appropriate.
[11] This segment is based on: Mohammed L Ahmadu, ‘E-Procurement as a Development Imperative in Small Island States in the South Pacific’ (2003) 10 James Cook University Law Review 51-70.
[12] The Internet was initially called: ARPAnet (Advanced Research Project Agency) (1969). It began as a military internet-work; then to an academic research internet-work; and is presently an open-commercial internet-work. This is today referred to as the: Internet.
[13]See generally, Internet
Infrastructure and e-Government in Pacific Island Countries: A Survey on the
Development and Use of the Internet, UNESCO (March
2002).
[14] See,
‘E-Government Strategic Framework IDA Singapore’ at
http://www.ida.gov.sg (last visited 06 July 2006); and The E-Government
Handbook for Developing Countries
(2002).
[15] See, Andrew Terret
and Iain Monaghan, ‘The Internet- An Introduction for Lawyers’ in
Lilian Edwards and Charlotte Waelde (eds) Law and Internet: A Framework for
Electronic Commerce (2nd ed, 2000) 1 who defines it as: “a
public international networks of networks.”
[16] See, Christopher Reed,
Internet Law: Text and Material (2000) 10.
[17] See, R. Braden,
‘Requirements for Internet Hosts- Communication Layers’ in
Christopher Reed, op. cit at 12 where he says: “The TCP controls
the exchange of packets between hosts; it sets outs the mechanisms for checking
whether the packet has arrived, for checking to ensure that it has not been
corrupted in transit , and for resending it if transmission
fails.”
[18] The protocol
defining the content of information is the Hyper Text Transfer Protocol
(HTTP).
[19] Christopher Reed,
op. cit. 12.
[20] See,
Daniel Tunkel and Stephen York, (eds) E-Commerce: A Guide to the Law of
Electronic Business (2000) 20-22; For the UK perspective, see Markus
Hoffman, ‘Internet Domain Names- Legal Disputes and Challenges under UK
Law’ (2002) 13 International Company and Commercial Law Review
241-250.
[21] See, Christopher
Reed, op. cit. 57; and Nick Page, ‘Contracting Across the
Internet’ (1997) 20(9) IP News IF
i-iv.
[22] Cf Raymond Perry,
‘E- Conveyancing: Problems Ahead’ (2003, May/June) Conveyancer
and Property Lawyer 215-
224.
[23] See, Michael Chissick
and Alistair Kelman, Electronic Commerce: Law and Practice,
(2nd ed, 2000) xxxiii, where domain was defined as: “A part of
the Internet name that specifies certain details about the host such as its
location and whether it is part of a commercial, governmental, or educational
entity. The address is written as a series of names separated by full
stops”; See also Reed Christopher supra n.3 at 38; and William
Black, “The Domain Name System” in Lilian Edwards and Charlotte
Waelde, (eds) op. cit.
125.
[24] See generally, Hector
L. MacQueen, ‘Copyright in Cyberspace: Shetland Times v. Wills’
(1998, May) Journal of Business Law
297-299.
[25] See, Charlotte
Waelde, ‘Trade Marks and Domain Names: There is a lot in a Name’ in
Lilian Edwards and Charlotte Waelde (eds) op. cit. 171; Susan Singleton
and Simon Halberstam, Business, the Internet and the Law (1999)
13-49.
[26] Nick Page, ‘Contracting Across the Internet’ (1997) 20(9) IP News IF i-iv; and Yee Fen Lim, Copyright in the Digital Age’ (April 2003) The New Zealand Law Journal 137; and generally, Paul Goldstein, International Copyright (2001).
[27] See generally, Fiona
Macmillan, ‘Striking the Copyright Balance in Digital Environment’
(1999) 10(12) International Company and Commercial Law Review 350-358;
and British Horseracing Board Ltd & Others v. William Hill Organisation
Ltd [2001] R.P.C 621 CA).The contents of database are protected whether by
copyright or not. No unauthorised extraction or reutilisation of all or
significant portions of it are
permitted.
[28] See, Stuart
Dutson, ‘The Internet, Conflict of Laws, International Litigation and
Intellectual Property: The Implications of the International Scope of the
Internet on Intellectual Property Infringements’ (1997, Nov) Journal of
Business Law 495-513.
[29]
This allows the attaching of special programs such as Java and Active-X to
process the making of copies of web pages. See generally, Christopher Reed
op. cit. 19 and 24.
[30] See
generally, Mathew Collins, The Law of Defamation and the Internet
(2001).
[31] Ibid at
79.
[32] Cf John Prebble et al, ‘Databases by Jurisdiction’ (2003, Nov) The New Zealand Law Journal 125.
[33] See also, Westcott, 2001, ADB who defined it as: the interaction between government and its employees, business and citizens over the Internet; and The South Pacific ICT Situation-Online Government Survey 2000, UNESCO & COMNET-IT.
[34] Digital technology- is defined as: a device or method that uses discrete variations in voltage, frequency, amplitude, location etc to encode, process or carry binary (zero or one) signals for sounds, video, computer data or other information. (ASEAN Secretariat).
[35] For a technical and scientific analysis of manual and automated interface processes, see generally, Umesh Shankar & Reiner Sailer, ‘Toward Automated Information Flow Integrity Verification for Security-Critical Applications’ at http://http://www.cs.berkeley.edu/~ushankar/research/cwlite/cwlite.pdf (last visited 06 July 2006).
[36] On the different levels of
automation necessary to achieve some degree of interface with manual systems,
see generally, M. L Cummings & S. Bruni, ‘Collaborative Human-Computer
Interface in Network Centric Warfare’ at
http://web.mit.edu/aeroastro/http://www/labs/halab/papers/Cummings_TTCP.pdf
(last visited 06 July 2006); and on the non-civilian application of such
interface decision-making processes, see generally, Thomas Russ & Andre
Valante, ‘Capturing Assumptions Underlying Planning Decisions’ at
http://http://www.isi.edu/isd/JFACC/SDA/SDA-interface.html (last visited 06 July
2006).
[37] See generally,
InfoDev-World Bank & Centre for Democracy and Technology, November 2002.
[38] The various government portals on the web illustrate this scenario.
[39] See for instance, Internet Permit Web User Guide at http://http://www.sjgov.org/commdev/cgi-bin/cdyn.exe/handouts-building_web_user_guide?grp=handouts-building&obj=web_user_guide (last visited 06 July 2006).
[40] John Zeleznikow,
‘Using Web-based Legal Decision Support Systems to Improve Access to
Justice’ 11 (1) 2002 Information & Communication Technology
Law.
[41] See for example,
http://www.pacli.org; http://www.worldlii.org;
http://www.auslii.org.
[42]
Future Pilot trial- USP Community Legal Centre.
[43] Such as simple ex parte
applications and consent
orders.
[44] Cf Jack G. Conrad
& Daniel P. Dabney, ‘Automatic recognition of distinguishing negative
indirect history language in judicial opinions’ at
http://portal.acm.org/toc.cfm?id=502585&type=proceeding&coll=GUIDE&dl=GUIDE&CFID=61301995&CFTOKEN=69299212#502632
(last visited 06 July 2006). See also Garton v Hunter [1969] 1 All ER
451.
[45] Cf the perspective of more advanced economies. See generally, T, Adayoshi et al; ‘Analysis of Electronic System’ (July 2003) John Hopkins University Information Security Institute Technical Report TR 19.
[46] See generally, Kim Zetter,
“E-Votes Must Leave a Paper Trail” at
http://http://www.wired.com/news/evote/0,2645,61334,00.html (last visited 06
July 2006).
[47] Cf with the case
of Malaysia where the National Information Technology Agenda of 1996 set the
momentum for e-commerce, the development of appropriate hardware and software
technologies and the institution of a legal framework to accommodate any
accompanying changes. A significant aspect of this policy was the creation of
the Multimedia Super Corridor aimed at fostering the development of e-commerce.
Similar measures were taken by Singapore. This started in 1996 with the
Electronic Commerce Hotbed Programme- a national policy initiative aimed at
facilitating e-commerce in the country. In 1998, the country moved another step
forward by inaugurating the Electronic Commerce Master Plan. See generally, P.
S. Sangal, ‘Malaysia Creates Legal Infrastructure for its Multimedia Super
Corridor’ (1997)12 International Company and Comparative Law
Review 428-430.
[48] See
generally, UNESCO Report, March 2002.
[49] See, Janet Toland and Fuatai Purcell, 'Information and Communication Technology in the South Pacific: Shrinking the Barriers of Distance,' December 2002 Development Bulletin 91.
[50] See, InfoDev-World Bank
& Centre for Democracy and Technology, November
2002.
[51] Cf Nasser Saidi
et al, ‘e-government: Technology for Good Governance, Development and
Democracy in the MENA Countries’ at http://www.ictdar.org (last visited 06
July 2006).
[52] T. H. Chowdary, ‘Policy and Regulation to Bridge the Digital Divide’ at http://www.inomy.com (last visited 06 July 2006).
[53] See for instance, Health and
Safety at Work Act 1996 (Fiji); Health and Safety at Work Act Cap 195 (Vanuatu);
or Occupational Health and Safety Act 2002
(Samoa).
[54] Partly an
adaptation from: Mohammed L. Ahmadu, "Legal Aspects of Electronic Land
Registries in South Pacific Island Countries" Real Property Law Teachers'
Conference, 1-3 July 2004, University of Canterbury, Christchurch, New Zealand.
[55] Perry, above n 22,
215-224.
[56] Digital signature
is defined as an output of algorithm using computing process. See Adrian
McCullagh et al, ‘Cryptography: From Information to Intelligent Garbage
with Ease’ in Anne Fitzgerald et al (eds), Going Digital 2000: Legal
Issues for E-Commerce, Software and the Internet 207 (2nd ed.,
2002); and Stephen Mason, ‘Practical Problems of Digital Signatures’
(2003, Nov/Dec) I. N. L 9-10.
[57] Cf Stephen Mason and
Nicholas Bohm, ‘The Signature in Electronic Conveyancing: An Unresolved
Issue’ (Nov/Dec. 2003) Conv. & Prop. L. 460-472; Deveral Capps,
‘Conveyancing in the 21st Century: An Outline of Electronic
Conveyancing and Electronic Signatures’ (2002, Sept/Oct) Conv. &
Prop. L. 443-455; and Phillip H Kenny, ‘Are Electronic Signatures Safe
or Not?’ (2002, Mar/Apr) Conv. & Prop. L.
94-96.
[58] Cf Electronic
Signature in Global and National Commerce Act (USA); UNCITRAL Model Law
on Electronic Commerce 1996; Singapore Evidence Act (1996) s.35; and
the Canada Uniform Electronic Evidence
Act.
[59] Lesley Pollock,
‘E- Conveyancing: Is It Going To Work?’ (2002) 4(2) Elec. Bus.
L. 16.
[60] See, Graham
Norwood, ‘Cobwebs Shaken Off Conveyancing’ (2001) (0128) Estates
Gazette 126-127.
[61] Mark
Heighton, ‘Electronic Conveyancing: Moving With the Times’ (2002)
3(12) Elec. Bus. L. 11-12; Phillip H Kenny, ‘Digital Fears’
(2002, Jan/Feb) Conv. & Prop. L.
4-6.
[62] A certificating
authority is the issuer and manager of approved digital signatures. It is a
verification system for all its issued signatures, hence guaranteeing the
authenticity of signatures used in electronic
transactions.
[63] Stephen Mason,
‘Practical Problems of Digital Signatures’ (2003, Nov/Dec) I. N.
L. 9-10.