The Electronic Transaction Act Amendment Bill
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.
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.