The law of evidence and e-commerce Presented by: Anthony Okulo Advocate High Court of Kenya [email protected] 25th August 2008Anthony. A Okulo

The law of evidence The law of evidence and and

e-commercee-commerce

Presented by:Anthony OkuloAdvocate High Court of [email protected]

25th August 2008 Anthony. A Okulo LLB, LLM 1

IntroductionIntroduction

The objectives of this presentation is to:

a)Analyze and the law of evidence and e-commerce b)To determine whether electronic evidence is admissible

in court under the Evidence Act cap 80c)To preview the proposed Electronic Transactions Bill of

2007


Topics of DiscussionTopics of Discussion1. Definition of e-commerce2. The Evidence Act Cap 803. The Copyright Act No.11 of 20074. Conditions to be satisfied under the Evidence

Act5. Limitations of the law of evidence6. The Electronic Transactions Bill of 20077. Offences and penalties8. Conclusion


E-CommerceE-CommerceE-commerce is the use of electronic networks

to exchange or transfer business information, services, products and payments through the internet Electronic Transactions Bill, 2007

The internet is a worldwide computer network with three important facilities, amongst others that are provided via the internet, these are: e-mail, the worldwide web and Usenet. Godfrey v Demon Internet Ltd [1999] 4 All ER 342


The Evidence Act Cap 80The Evidence Act Cap 80

“Evidence” denotes the means in which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved……an includes:

Statements by accused persons Admissions Observations by the court in its judicial

capacity


The Evidence Act Cap 80The Evidence Act Cap 80Section 65Section 65

Primary evidence means the document itself is produced for inspection in court S65(1)

Secondary evidence includesa)Certified copiesb)Copies from the original by mechanical processc)Copies compared by the originald)Counter parts of the originale)Oral accounts of a document by a person who has seen

them


Copyright Act Copyright Act No. 11 of 2001No. 11 of 2001

A “computer” means an electronic or similar device having information processing capabilities (section 2(1) Copyright Act 2001)

A “computer program” means a set of instructions expressed in words, codes, schemes or in other form which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform a particular task or result. (section 2(1) Copyright Act 2001)


Copyright Act Copyright Act No. 11 of 2001No. 11 of 2001

Literary work means, irrespective of the quality......

a)...........(amongst others)b)Computer programsc)Tables and compilations of data including tables

and compilations of data stored and embodied in a computer or a medium used in conjunction with a computer


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (5) (C)Section 65 (5) (C)

A statement contained in a document and included in printed material produced by a computer (computer print-out) shall if the following conditions are satisfied, be deemed to also be a document..... And shall be admissible in any proceedings without further proof of production of the original or of the facts stated therein of which direct evidence would be admissible.

Hearsay rule: ‘ an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a fact asserted’ Cross and Tapper on Evidence (8th edn, 1995) p46


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (6) (a)-(d)Section 65 (6) (a)-(d)

The computer print-out containing the statement must have been produced by the computer during the period in which the computer was regularly used to store or process the information for the purposes of any activities regularly carried on over that period by a person having lawful control over the use of the computer S.65 (6) (a)

R v Governor of Brixton Prison, ex p Levin 1997 (HL)All E.R at 289The print-outs are tended to prove the transfers of funds which they

record. They do not assert that such transfers took place. They record the transfers themselves, created by the interaction between whoever purported to request the transfers and the computer program. The evidential status of the computer print-outs is no different from that of a photocopy of a forged cheque.


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (6) (a) – (d)Section 65 (6) (a) – (d)

The computer was operating properly or, if not, that any respect in which it was not operating properly was not such as to affect the production of the document or the accuracy of its content's 65 (6) (C )

Director of Public Prosecutions Versus Mckeown 1997 (HL) All ER at 737

The clock display of an Intoximeter was not functioning properly. The courts distinguished between a relevant and irrelevant malfunction. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter.


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (6) (a) – (d)Section 65 (6) (a) – (d)

The Computer was, during the period to which the proceedings relate, used in the ordinary course of business regularly and was supplied with information of the kind contained in the document or the kind of information so contained is derived S. 65 (6) (b)

The information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of business S. 65 (6) (d)


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (6) (7) (a)-(d)Section 65 (6) (7) (a)-(d)

Where over any period, the function of storing or processing information for the purposes of any activities regularly carried out or….was regularly performed by computers, by:

a) By a combination of computers operating over that period…

All computers used for that purpose during that period shall be treated for the purpose of this section as constituting a single computer and references in this section to a computer shall be construed accordingly


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (6) (7) (a)-(d)Section 65 (6) (7) (a)-(d)

Combination of computers

Godfrey vs Demon Internet Limited [1999] 4 ALL ER 342

The internet is a worldwide computer network with three important facilities, amongst others that are provided via the internet, these are; e-mail, the worldwide Web and Usenet


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (8) (7) (a)-(c )Section 65 (8) (7) (a)-(c )

CertificationDPP v McKeown [1997] 1 All ER 737

This section is a specialized exception to the hearsay rule which on compliance with its conditions, enables evidence which …could have been given orally, to be given instead by a certificate admissible on mere production.

Note: Hearsay rule: ‘ an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a fact asserted’ Cross and Tapper on Evidence (8th edn, 1995) p46


The Evidence Act Cap 80The Evidence Act Cap 80Section 65 (9) (a)-(c )Section 65 (9) (a)-(c )

Documents produced with or without human intervention

Owners of Motor ship Sapporo Maru versus Owners of Steam Tanker Statue of liberty [1968] 2 All E.R. at 195

The defendants resisted the admissibility of a strip of film[that recorded two ships colliding at sea] on the grounds that it [was] a piece of evidence produced purely mechanically without human intervention and as such offends the hearsay rule. The court ruled that the law is bound to take cognizance of the fact that mechanical means have replace[d] human effort


Limitations of existing lawsLimitations of existing laws

Requirement to give information in writingRequirement to provide a signatureRequirement to produce a documentRequirement to record informationRequirement to retain a document

Must be in material form


Limitations of existing lawsLimitations of existing laws

THE EVIDENCE ACT DOES NOT RECOGNISE ELECTRONIC DATA

All documents must be produced in material form


Electronic Transactions Bill, 2007Electronic Transactions Bill, 2007

Part 111 Section 6Information shall not be denied legal effect,

validity or enforceability solely on the ground that it is in the form of an electronic version


Electronic Transactions Bill, 2007Electronic Transactions Bill, 2007

Part 111 Section 8Where the law requires information to be in

writing, the requirement of the law is fulfilled if the information is contained in electronic version that is accessible and intelligible so as to be usable for subsequent reference


Legal requirements(electronic versions)

Legal requirements(contract formation)

Recognition of electronic signatures

Originality (forms)Originator and

addressee

Formation and validity of contracts

Time and place of dispatch and receipts of electronic versions

Time of contract formation Acknowledgement of receipts Attribution of electronic

versions Automated message systems License for electronic

certification services


Liability of Service Providers Privacy and Security

Mere conduitCachingHostingInformation location

toolsUnlawful activities Obligations to monitorExemptions

Protected information systems

Security regulationsCollection of personal

informationAccuracy of informationAccess to records


E-Government General provisions

Electronic filling and issue of documents

Publication of rules and regulations in the Kenya Gazette

Jurisdiction of the courtsRestrictions on

disclosure of informationLimitation of liabilityRegulations


Amendments to the Evidence ActAmendments to the Evidence Act

Any information contained in an electronic record which is printed on a paper, stored, recorded or copied optical or electromagnetic media produced by a computer shall be deemed as a document and therefore admissible in court if certain conditions are satisfied……………….


Amendments to the Penal CodeAmendments to the Penal CodeSchedule CSchedule C

Unauthorised access Unauthorised data access Data Interference System Interference Electronic Fraud Electronic Forgery Misuse of electronic systems Unauthorized access to

password Misuse of encryption Malicious code Cyber stalking Spamming

Spoofing Unauthorized interception Cyber Terrorism Waging Cyber War Child Pornography Enhanced punishment Corporate liability

Power of investigation officer to access electronic systems and data


ConclusionConclusion

THE ELECTRONIC TRANSACTIONS BILL,2007 WILL CREATE AN ENABLING ENVIRONMENT FOR E-COMMERCE TO

FLORISH IN KENYA
