E-BUSINESS, TELECOMMUNICATIONS AND THE LAW
An Arab perspective
By: Amr Zaki Abdel Motaal
(Click here for biography)

This is a summary extract from the presentation and paper entitled "Digital Convergence & The Law, Comparative & Arab Perspective" presented by Mr. Amr Zaki Abdel Motaal to the International Bar Association in London (March 2002).

The digital revolution and a paperless society, produce a new global paradigm shift. The digital divide, digital power, the problems arising from the digital phenomenon and how to solve them are challenging the Arab World.

Digital Convergence had an impact on all walks of life including the law. How Arab legislators, lawyers, police, prosecutors, magistrates, administrators in the Arab countries are handling the legal issues arising from digital convergence, mainly in e-commerce, e-business, e-banking, telecommunications-government and cyber crime within a global framework, is discussed.

In most legal systems, the formation of a contract between absent parties is an established practice since ages. By the advent of the telegram, the telephone, the telex, the fax and the integration of the computer in telecommunications or what is known as telecommunications convergence, said new tools dominate the arena in tele-businesses and tele-transactions as successors to the personal messengers, to the conventional mail and to the carrier pigeon. The advent of electronic data interchange E.D.I and telecommunications networks revolutionized exchange of messages and the formation of contracts between physically absent parties by using electronic documents through public and/or private networks. The evolution of E.D.I in several fields of activities, industrial, commercial, financial, scientific, medical, educational, entertainment activities, … etc. sparked a chain reaction creating new facts, new activities which led to the emergence of new corporate and contractual forms, a new paradigm shift.

Unfortunately, the facts are infinite and the texts of the law are finite. This situation started the dilemma of the modern lawyer facing the ever-growing, ever-changing electronic and digital phenomena. Conventional paper, documents and hand written signatures were the order of the day in forming written contracts since the dawn of civilization but the advent of telematics created a new game, revolutionizing among many things the law. New legal interrelated disciplines emerged "Computer Law, Cyber Law, Online Law … etc."

- DEFINING E-BUSINESS, E-COMMERCE AND E-TRANSACTION

The definition of the scope of e-business, e-commerce, e-transaction eludes deterministic limits. It includes in example EDI, electronic data interchange in the realms of goods and services including advertisement, e-mail, exchange of information, negotiation of commercial transactions by electronic means, instantaneous transactions in the networks, the negotiation and drafting of contracts, e-delivery, e-payment, e-distribution, e-banking …etc. E-business and e-commerce may include in a "primary stage" the promotion, advertisement and marketing of goods and services electronically. In an "intermediate stage", it may include in addition to the above-mentioned activities negotiating and perhaps signing electronic contracts, learning the execution of delivery of goods and services and payment. In an "advanced stage", this may include in addition to the activities of the primary and intermediate stages the instantaneous payment of value of goods and services through the network and delivery of said goods and services through the networks or outside the networks. This constitutes the "whole trading cycle".

IMMINENT LEGAL PROBLEMS

The emergence of new Tele-activities and Tele-transactions raised imminent situations for the legal practitioner in Civil, Criminal, Administrative, Procedural and Evidence Laws specially in cases of litigation, i.e. defense pertaining to the error in the object of a contract, or plea pertaining to the revocation of contractual or delictual responsibility arising from an alien cause. Defense based on doubt that is always interpreted in favor of the creditor in commercial relationships and in favor of the defendant in criminal cases presses for the perpetual amendment of several legislations.

The technical aspects of said new legislations renders the legal practitioner more and more confused and as one legal philosopher stated: "in our new modern times, ignorance of the law by the lay person may be an accepted excuse".

A PHILSOPHY FOR E-LEGISLATION IN EGYPT

Four principles were suggested in this context:
1- The avoidance of the incarceration of e-activity within restrictive legislative frameworks, that would imprison the natural evolution of e-businesses, leaving the matters to the prevailing laws, the general legal principles, the notions of public order and public ethics to the principle of free will and the principle of free evidence in commercial practices giving pre-eminence to the law of the contract and without recourse to a legislative mandatory provision except when it is utmost required.
2- Minimal legislative interference except in utmost necessity to avoid the recourse of the party to govern their relationship by foreign laws and resorting to foreign fora in case of litigation.
3- The unbiased approach vis-à-vis different technologies in the same field to encourage lawful competition and avoid monopolies in the same domain.
4- Full respect of established commercial traditions and customs while having a full consideration of the international trans-border aspects of electronic transactions.

In Egypt, projects of laws (Draft Laws) were prepared. The first handling electronic commerce, the second tackling telecommunications and the third tackling electronic signature.

The second and the third drafts laws are on their way to being discussed in the parliament. The first draft law concerning electronic commerce is under consideration and study at the Ministry of Justice for the following reasons:
1- Issuing a law governing the electronic document and the electronic signature is a legal necessity to bridge the gap in the Egyptian legal system.
2- The notion of e-commerce is still an illusive matter. But is it a matter so different from the notion of commerce as described and organized in the new Egyptian code of commerce? Should e-commerce, if requiring special legal stipulations, be added as a chapter in the Egyptian code of commerce?
The Committee studying these issues with the Department of Legislation of the Ministry of Justice, bearing in mind all the above mentioned, is of the opinion that a new legislation cannot fulfill its aim if not applied and respected from all.

- CYBERCRIME, E-COMMERCE AND E-BANKING

The protection from cyber crime is a necessity; the first line of defense against cyber crime is not a legislative device. Information security, system security, network security constitute in fact the first line of defense.

In criminal law, unlike civil and commercial law, the application of general legal rules and principles and analogy is incompatible with the Principle of Legalit1 (Nullum crimen nulla poena sine lege) new crimes require new substantive and procedural texts. Criminal offenses in the realm of cyber crime cannot be confined within the boundaries of an exclusive list. Nowadays, they may include: illegal access, illegal interception, system interference, misuse of devices, which are considered to be offenses against the confidentiality, integrity and availability of computer data and systems.

They also include, computer related forgery and computer related fraud, which are considered to be computer related offenses. They also include offenses related to pornography (adult or child pornography), which are considered to be content related offenses. They include offenses related to infringements of copyright and related rights. Cyber crime laws should deal with the attempt, aiding or abetting cyber crimes and with corporate liability.

From the criminal procedural perspectives, matters of evidence such as the expedited preservation of stored computer data, partial disclosure of traffic data, the legalities of the production, search and seizure of stored computer data, real time collection of computer data (basically traffic data), the legal interception of content data and matters pertaining to the Jurisdiction over trans-border criminal activities are imminent matters. Topics such as the general principle relating to international co-operations in combating cybercrime for the purposes of investigations, proceedings concerning criminal offenses related to computer systems and data or for the collection of evidence in electronic form.
The Problems Facing Law Enforcement are the quasi immateriality of the act of violation- the anonymity of the perpetrator - the incompatibility of the texts of most of the prevailing laws with the acts of violation committed via new technological means in qualifying said acts as crimes - The conflict of laws - The conflict of jurisdictions - The geographical and territorial barriers - The technical incapability of most law enforcement agencies to track and apprehend violators - the scarcity of computer forensic reliable techniques and technicians - National security issues - The quasi illiteracy pertaining to basic matters of information and communication technologies - The preoccupation of law enforcement agencies with other more concrete conventional crimes - The unavailability of funds for the financing of law enforcement agencies.

Major Topics Discussed in Said Paper: The digital revolution and a paperless society - The digital divide - Measuring the digital divide - Digital power or digital divide- Global problems and the digital phenomenon - How to bridge the digital divide? - The Arabs and the digital challenge- The digital convergence- Defining e-business, e-commerce and e-transaction - Parties to e-commerce, e-business and e-transaction - E-business, e-commerce, e-transactions figures and values - Obstacles to e-commerce, e-business and e-transactions in the developing countries - Digital convergence and the law - Imminent legal problems - Solutions for said problems - E-commerce, e-business, e-transactions and the law in the Arab world (1- Tunisia 2- Saudi Arabia 3- Egypt) - A philosophy for e-legislation in Egypt - E-commerce law, e-signature law and the telecommunications law (Egypt) - E-commerce law, legislative concerns (Egypt) - Cyber crime, e-commerce and e-banking (the Budapest convention on cyber crime November 2001) - The age of uncertainty.

Biography:
Mr. Abdel Motaal is the senior managing partner of the business law firm of Abdel Motaal, Moharram and Heiza established in Cairo, Egypt since 1926. The firm is a partnership of lawyers providing multilingual legal services in the realms of consultation, contracts and litigation (including arbitration). The practice encompasses all legal specialties including (but not limited to) the legal aspects of Banking, Finance, Trade, Industry, Telecommunications, Information and E-Business.

He previously worked for 17 years as an attorney then manager with The Arab International Bank, and has 27 years of legal expertise.

He graduated from the Jesuit College in Cairo and Cairo University Law School, he is member of the Bar since 1974, he is an Attorney at Law "avocat a la Cour de Cassation", an international arbitrator, and he was chosen as an educational source person for UNITAR Cyber Law initiative. He is a speaker at UNESCO's, The Arab League and other international and local Fora on issues pertaining to the legal aspects of trade and industry with a special interest on the impact of science and technology on the society and the law; he is member of the core committee drafting e-signature (e-business) laws in Egypt. He is the author of several legal treaties; the most recent is the Egyptian section of "Kluwer International Law Encyclopedia of Agency and Distribution Agreements 2002" (to be published this summer).

If you require the full text of this paper or other papers dealing with Telecommunications and Information Laws, by the same author, in Arabic or in English, it could be sent to you, free of charge, electronically. You may receive a copy of said material (pro bono) - free of charge, contact:
 aliaamoharram@ammh-lawfirm.com