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ELECTRONIC COMMERCE

Waiting for the laws to pass

SASIWIMON BOONRUANG

Although businesses can function without specific laws governing electronic commerce, the failure of draft legislation to be considered by the Senate in 2000 is damaging confidence in the economy, according to Manoo Oradeedolchest, honorary president of the Association of Thai Computer Industries (ATCI).

The first electronic commerce law on transactions and signatures - which had been two separate draft laws before they were combined by the Council of State prior to being proposed to Parliament - passed its second and third readings in Parliament in late September. However, the Senateûs failure to consider the law means that Thailand must now wait for at least three months before the law can be enacted.

This e-commerce law, the first in a series with four more remaining, would have allowed electronic documents to be used as evidence in court proceedings. The law would also mean that electronic signatures would be as legally binding as handwritten signatures for e-commerce transactions, Mr Manoo said.

However, it does not mandate what technology businesses must use electronic signatures.

For example, when a person goes to an e-commerce web site and uses an ID and password before making a purchase, he or she will automatically enter into an agreement with the company.

``Even though this is not a secure transaction, it is an agreement by two parties and is automatically legal by law. If there is something wrong, the shopper has to prove whether it was their order or not,'' Mr Manoo explained.

Basically, the e-commerce law is about assumptions and about evidence.

It would place the onus on users to prove that they were or were not the person who conducted the electronic transaction should a case be brought to court, he said.

The first draft law, now called the Electronic Commerce Law, combined the previous Electronic Transactions Law and Electronic Signature Law, which were rewritten to remove concerns about too much government control over e-commerce and to clarify some of the sections, was not without controversy.

''Basically, the scrutiny committee agreed to change the responsibility of the e-commerce committee so that it just regulates electronic signatures,'' said Mr Manoo.

The committee also agreed to limit the scope of the government's authority to issue executive orders related to e-commerce.

One remaining concern was the Thai terminology for ''electronic signatures'', which has been a source of confusion for non-IT users.

Prasobsook Boondech, chief justice of the Central Intellectual Property and International Trade Court, said that all the six e-commerce laws were of benefit to Thailand, as they supported the new business practices of the Internet era. The proposed laws should be considered simultaneously and endorsed as soon as possible, he said.

He said the government had misunderstood the purpose of the laws. Rather than being pushed by other countries, the laws were needed to protect this country. If they were introduced late, Thailand would fall behind, the chief justice said.

Earlier, Prime Minister Chuan Leekpai had remarked that the electronic commerce laws and the electronic funds transfer law would be announced by the end of this year. He said they were important since they would not only increase confidence in electronic transactions, but were also part of the e-commerce infrastructure.

''If we do not have these laws, it will be a big obstacle for the country in the development of e-commerce. Having electronic signature and EDI laws will help businesses to work more efficiently,'' he said, adding that the government had to develop an appropriate IT policy and needed to build up an infrastructure to support the technology.

The National Electronic and Computer Technology Centre (Nectec) was assigned over a year ago to draft laws relating to e-commerce, including laws on electronic commerce, electronic signatures, computer crime, electronic funds transfer, data protection as well as universal access.

The universal access law comes from the Constitution's Article 78, which stipulates that all citizens are entitled to equal access to information.

According to Nectec's chief legal researcher, Surangkana Kawjumnong, all the e-commerce laws were planned to take effect within 2001.

The universal access law is due to make its first appearance before the cabinet as soon as a new government is elected, and it will then be submitted to the Council of State. Drafts of the laws are now being studied by subcommittees devoted to each law.

The subcommittees consist of both private and government entities such as the the Business Economics Department of the Commerce Ministry, the Thai Chamber of Commerce, the Thailand Development Research Institute (TDRI), the Police Department, the Customs Department, the Central Intellectual Property and International Trade Court and the Justice Ministry.

The laws were drafted following recommendations from the United Nations Committee on International Trade Law (Uncitral). Nectec used the Uncitral and relevant laws of other countries such as the United States, Malaysia and Germany as models in drafting the laws.

Nectec is also setting up a certification authority to ensure security of electronic payments and it is now scheduled to begin operations in the first quarter of 2001.

The Public Key Infrastructure (PKI) system, from Canada-based Entrust, is in the process of configuration and testing, according to Nectec officials.

E-Commerce Framework

The draft of the electronic commerce framework proposed by Nectec was approved by the Council of Economic Ministers in late October. The framework will have to be approved by the cabinet before it can be announced as the national electronic commerce policy.

The framework would provide a clear direction and help both government agencies and private companies to develop e-commerce along the same lines, said Dr Pichet Durongkaveroj, director of Nectecûs Electronic Commerce Resource Centre.

Under the terms of the framework, the government will be responsible for measures to facilitate e-commerce and its development in Thailand through five key policies:

• The government will set out e-commerce as a national trade strategy that must be endorsed in part of the ninth and tenth National Economic and Social Development Plans. E-commerce will be mainly developed to increase exports and encourage domestic consumption.
• The government will support and facilitate the public and private sectors in e-commerce by enhancing competitiveness in global trading, and building trust and confidence among entrepreneurs and consumers. The legal infrastructure and security will be established as e-commerce fundamentals.
• The government will facilitate e-commerce transactions by eliminating official regulations that are e-commerce barriers, and encourage fair competition and provide consumer protection in the new trading system.
• The government itself will reform its official systems with electronic media and IT to achieve an ``electronic government''.
• By co-operating with the private sector, the government will implement a database system and study international e-commerce trends to make Thailand proactive in global and regional trade negotiation.

Status of the laws

Nectec has acted as the secretariat in the drafting of six laws, the first two of which were combined into a single law. The laws, as drafted, are:

1. Electronic Commerce Law: Combines the Electronic Transaction Law and the Electronic Signature Law and has the objective of setting an effective legal framework to support successful electronic contracts and to provide security for electronic commerce transactions by using asymmetric-key cryptography.

2. Computer Crime/Computer-related Crime Law: To criminalise the new types of offences in the borderless computer world.

3. Data Protection Law: To protect rights of privacy in the information society.

4. Electronic Funds Transfer Law: To promote consumer protection and allocate the liability incurred from technological risks.

5. Universal Access Law (bylaw of Section 78 of the Constitution): To create an equitable information society by promoting universal access in the National Information Infrastructure (NII).

Many public seminars have been held by Nectec and other organisations to promote awareness of the social effects of e-commerce and to call for public opinion.

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