Electronic Communication and Transactions Bill, 2013 (Bill No. 25 of 2013)

Botswana as a country has moved into an era where electronic commercial and non commercial transactions including e-government services have been embraced by the business community. With this development, legal challenges and regulation become a reality; hence the need for a comprehensive legal framework as set out in the proposed Bill.

A Bill has therefore been tabled by parliament, the object of which is to provide for the facilitation and regulation of electronic communications and transactions; to provide specifically for electronic commerce and electronic signatures and for matters incidental and connected thereto.

According to the Minister of Trade and Industry, upon being passed as an Act of Parliament this Bill will make provision for the Facilitation and Regulation of Electronic Communications and Transactions so as to enable the following;

  1. Legal recognition and Validity of Electronic Commercial Transactions conducted internally and externally;
  2. Recognition, promotion and implementation of information technologies which facilitate electronic commerce;
  3. Electronic transactions to be recognised in the same manner as paper based transactions;
  4. The promotion of a legal framework to support electronic commercial practices; and
  5. The promotion and adoption of information technologies in relation to electronic transactions;
     

The Bill codifies the following:

  • Gives electronic signatures the legal equivalence to the handwritten signature;
  • Promotes a technology-neutral legal framework for the creation of e-signatures;
  • Gives legal recognition to certificates created or issued locally or externally;
  • Provides functional equivalence of electronic information to written information such that certain legal requirements for information retention, presentation of information or information admissible as evidence is recognised regardless of form; and
  • Promotes uniformity of legislation and supports commercial practices with legal coverage.

Essentially the Act places Computer generated documents on the same footing as traditional paper evidence. In the past decade, the internet has been emerging as a prominent network platform for the conduct of electronic commerce and as a medium for conducting business. As such, it is High time Botswana is aligned to this emerging phenomenon and to create a legal framework as governance for that.

Therefore, the need for the Electronic Communications and Transactions Act arises.

At Section 2 of the Electronic Communications and Transactions Bill, electronic communications and electronic transaction are defined as follows:

  1. Electronic Communication - means information generated, communicated, processed, sent, received, recorded, stored, displayed by electronic means;
  2. Electronic Transaction - means a transaction, action or set of actions of either a commercial or non commercial nature, and it includes the provision of information or e government services;
  3. Electronic Signature - means data in electronic form attached to or logically subjoined to an electronic communication, and which can be used to identify the signatory (method of authentication) and indicate consent for the information contained in the said communication; and
  4. Data message – means information generated, sent, received, or stored by electronic, magnetic, optical or similar means, including but not limited to, electronic data interchange, electronic mail, mobile communications such as short message service (sms), and audio and video recordings.

The definition of Data messages outlines the scope and the type of information that falls within the scope of the application of the Bill.  The Act seeks to regulate paperless and soundless information and the above definitions outline to some extent the scope of application in regulating same.

The Bill provides for, the legal recognition of electronic communications, the legality of electronic transactions, the transmission of electronic communications, secure electronic signatures, consumer protection, online marketing as well as liability of service providers.

The last part of the bill provides for general provisions such as offences and penalties as well as the prerogative to make regulations.

The Bill also sets out clear rules as to admissibility and evidential weight of communications which is paramount for litigating parties.

It is important for Clients to note that due to the Bill, a legally valid offer and acceptance may be expressed by way of electronic communication essentially paving way to formation of legally valid contracts by way of electronic communication. That is to say by assessing the Bill one may actually conclude that a legally valid contract me be concluded by way of SMS.

The introduction of the above Bill is a milestone as it provides an opportunity for us to expand our litigating muscle to lengths which have always remained somewhat a grey area. As a Law firm with roots firmly attached to civil litigation, legal recognition and validity of electronic commercial transactions is a way of tapping into a new era of corporate commercial law, an area of the law which have specialise in and as such are properly placed to embrace this Bill once it passes as an Act.