The Elec­tronic Trans­ac­tion Act Amend­ment Bill

Thai-American Business (T-AB) Magazine - - Contents - Writ­ten by: Kowit Somwaiya and Vin­cent Birot

The fast de­vel­op­ment of the dig­i­tal econ­omy has re­sulted in the rapid in­crease of e- commerce trans­ac­tions. As Thai­land needs laws to reg­u­late and pro­mote the dig­i­tal econ­omy and to ef­fec­tively deal with cy­ber se­cu­rity is­sues, the gov­ern­ment has un­der­taken a pro­found re­shape of the ex­ist­ing le­gal frame­work. This ar­ti­cle dis­cusses the draft of the Elec­tronic Trans­ac­tions Act Amend­ment Bill ( the Draft Law) out of the 10 dig­i­tal econ­omy laws as ap­proved by the Gov­ern­ment as of Fe­bru­ary 2015. The Draft Law will amend the Elec­tronic Trans­ac­tions Act B. E. 2544 ( the ETA) to bring it in line with the cur­rent e- commerce is­sues and tech­nolo­gies.

ELEC­TRONIC SIG­NA­TURES

As­sess­ing the va­lid­ity of con­tracts in the in­ter­net en­vi­ron­ment is com­pli­cated. Elec­tronic sig­na­tures are there­fore es­sen­tial to pro­mote e- commerce be­cause they en­sure that all par­ties have en­tered in a bind­ing con­tract.

Thai­land en­acted the ETA in 2001 to give elec­tronic trans­ac­tion doc­u­ments and elec­tronic sig­na­tures the same le­gal ef­fect as tra­di­tional, writ­ten and signed con­tracts.

The Draft Law seeks to im­prove the au­then­ti­ca­tion and the se­cu­rity of elec­tronic sig­na­tures by es­tab­lish­ing a list of cri­te­ria for as­sess­ing the re­li­a­bil­ity of the elec­tronic sig­na­ture method used. Th­ese cri­te­ria no­tably in­clude the se­cu­rity and safety stan­dards for equip­ment and the process for iden­ti­fy­ing the par­ties, the char­ac­ter­is­tics and the reg­u­lar­ity of the elec­tronic trans­ac­tion and the safety of the com­mu­ni­ca­tion sys­tem. The Draft Law rec­og­nizes the tech­nol­ogy neu­tral­ity of elec­tronic sig­na­tures by al­low­ing users and ser­vice providers to se­lect au­then­ti­ca­tion tech­nol­ogy on a riskman­aged ba­sis, agree­ing on what is fit for their pur­poses.

OF­FER AND AC­CEP­TANCE

A con­tract is cre­ated by an of­fer and an ac­cep­tance. An of­feror makes an of­fer to an of­feree. A legally bind­ing con­tract is cre- ated once the of­feree ac­cepts the of­fer. An of­fer must be dis­tin­guish­able from an in­vi­ta­tion to treat. An of­fer leads to a bind­ing con­tract on ac­cep­tance. But an in­vi­ta­tion to treat can­not be ac­cepted be­cause it is merely an in­vi­ta­tion for of­fers.

Un­der the Draft Law, when an of­fer is made on­line one or sev­eral times and is not ad­dressed to any spe­cific per­son but it is gen­er­ally ac­ces­si­ble by sev­eral per­sons us­ing the in­ter­net, it shall be deemed an in­vi­ta­tion to treat. If an of­fer clearly in­di­cates the in­ten­tion of the of­feror to be bound once the of­fer is ac­cepted, such of­fer is a valid of­fer and is not an in­vi­ta­tion to treat. This rule also ap­plies to an of­fer that al­lows au­to­matic re­sponses by an in­for­ma­tion sys­tem.

For elec­tronic con­tracts, the ac­cep­tance is de­ter­mined at the time when the ac­cep­tance as a data mes­sage en­ters the in­for­ma­tion sys­tem of the of­feror. The Draft Law rec­og­nizes the va­lid­ity of an ac­cep­tance which is made by an au­to­mated sys­tem for data in­ter­change even if both par­ties are au­to­mated sys­tems. There is no need of any hu­man ac­tion to cre­ate a valid and bind­ing con­tract.

THE ELEC­TRONIC TRANS­AC­TION DE­VEL­OP­MENT AGENCY

The Draft Law pro­vides for the cre­ation of an Elec­tronic Trans­ac­tion De­vel­op­ment Agency ( the ETDA) for the pur­poses of de­vel­op­ment, en­cour­age­ment and pro­mo­tion of elec­tronic trans­ac­tions. The ETDA will rec­og­nize and sup­port na­tional and cross- border elec­tronic trans­ac­tions given con­tin­u­ing changes in the in­for­ma­tion and com­mu­ni­ca­tion tech­nolo­gies.

Pass­ing laws to sup­port the dig­i­tal econ­omy scheme is a daunt­ing task. The con­tin­u­ing changes in the in­for­ma­tion and com­mu­ni­ca­tion tech­nolo­gies make it im­pos­si­ble to have per­fect dig­i­tal econ­omy laws. The leg­isla­tive work can­not be a one- time process. It is a con­tin­u­ing task to cre­ate ef­fec­tive laws. The Draft Law once en­acted by the Na­tional Leg­isla­tive As­sem­bly can be ex­pected to be later ad­justed through the rec­om­men­da­tion to be made by the ETDA.

Kowit Somwaiya is the Man­ag­ing Part­ner and Vin­cent Birot is a Coun­sel of Law­plus Ltd. They can be con­tacted at: kowit. somwaiya@ law­plusltd. com and vin­cent. birot@ law­plusltd. com.

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