@eLaw.com.hk by yip tse & tang, solicitors + notaries 葉謝鄧律師行

UNCITRAL Model Law on Electronic Commerce Law

The Model Law, adopted in 1996, is intended to facilitate the use of modern means of communications and storage of information, such as electronic data interchange (EDI), electronic mail and telecopy, with or without the use of such support as the Internet. It is based on the establishment of a functional equivalent for paper-based concepts such as "writing", "signature" and "original".

By providing standards by which the legal value of electronic messages can be assessed, the Model Law should play a significant role in enhancing the use of paperless communication. In addition to general norms, the Model Law also contains rules for electronic commerce in specific areas, such as carriage of goods. With a view to assisting executive branches of Governments, legislative bodies and courts in enacting and interpreting the Model Law, the Commission has produced a Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce.

Exemptions in Schedule 2 of ETO

SCHEDULE 2 [ss. 13(1) & (3) & 50]

Proceedings in Relation to which Sections 5, 6, 7 and 8 of this Ordinance do not Apply under Section 13(1) of this Ordinance

Proceedings before any of the following:

(a) the Court of Final Appeal;

(b) the Court of Appeal;

(c) the Court of First Instance;

(d) the District Court;

(e) the Mental Health Review Tribunal established under the Mental Health Ordinance (Cap. 136);

(f) the Lands Tribunal;

(g) a coroner appointed under section 3 of the Coroners Ordinance (Cap. 504);

(h) the Labour Tribunal;

(i) the Obscene Articles Tribunal established under the Control of Obscene and Indecent Articles Ordinance (Cap. 390);

(j) the Small Claims Tribunal;

(k) a magistrate.

Exemptions in Schedule 1 of ETO

SCHEDULE 1 [ss. 3 & 50]

Matters Excluded from Application of Sections 5, 6, 7, 8 and 17 of this Ordinance under Section 3 of this Ordinance

1. The creation, execution, variation, revocation, revival or rectification of a will, codicil or any other testamentary document.

2. The creation, execution, variation or revocation of a trust (other than resulting, implied or constructive trusts).

3. The creation, execution, variation or revocation of a power of attorney.

4. The making, execution or making and execution of any instrument which is required to be stamped or endorsed under the Stamp Duty Ordinance (Cap. 117) other than a contract note to which an agreement under section 5A of that Ordinance relates.

5. Government conditions of grant and Government leases.

6. Any deed, conveyance or other document or instrument in writing, judgments, and lis pendens referred to in the Land Registration Ordinance (Cap. 128) by which any parcels of ground tenements or premises in Hong Kong may be affected.

7. Any assignment, mortgage or legal charge within the meaning of the Conveyancing and Property Ordinance (Cap. 219) or any other contract relating to or effecting the disposition of immovable property or an interest in immovable property.

8. A document effecting a floating charge referred to in section 2A of the Land Registration Ordinance (Cap. 128).

9. Oaths and affidavits.

10. Statutory declarations.

11. Judgments (in addition to those referred to in section 6) or orders of court.

12. A warrant issued by a court or a magistrate.

13. Negotiable instruments.

New Offences under ETO

To safeguard the integrity and trustworthiness of the CA system, three new offences were created by the Electronic Transactions Ordinance, even of which can result in fine or imprisonment if offended.

obligation of secrecy under s.46

a person who has access to any record, book, register, correspondence, information, document or other material in the course of performing a function under or for the purposes of this Ordinance shall not disclose or permit or suffer to be disclosed such record, book, register, correspondence, information, document or other material to any other person.

false information under s.47

A person who knowingly or recklessly makes, orally or in writing, signs or furnishes any declaration, return, certificate or other document or information required under this Ordinance which is untrue, inaccurate or misleading commits an offence and is liable in the case of an individual to a fine at level 6 and to imprisonment for 6 months and in any other case, to a fine at level 6.

false claim as recognised CA under s.48

A person who makes a false claim that a person is a recognized certification authority commits an offence and is liable in the case of an individual to a fine at level 6 and to imprisonment for 6 months and in any other case, to a fine at level 6.

Usage of Digital Certificate

Hongkong Post e-Cert may be used to perform commercial operations and can enable safe and secure electronic transactions in the field of banking, finance, telecommunications, entertainment, education, health and Government services such as the ESD scheme etc.

Reference web-site: www.esdlife.com

What's a recognised certificate in the case of e-Cert?

1. a certificate recognized under s.22

2. a certificate of a type, class or description of certificate recognized under s.22

3. a certificate designated as a recognized certificate and issued by the Postmaster General.

Facts about Hong Kong Post e-Cert

According to Hong Kong Post, e-cert (personal) is issued to individuals using face-to-face authentication at the Hongkong Post's branch office counter. The liability limit allowable by Hong Kong Post is set to HK$1 million. The validity period is one year.

At Hong Kong Post's web-site, the certification revocation list (shortly known as CRL) is available for public's access. The Certificate Revocation List (CRL) is currently updated 3 times daily at 09:45, 14:15 and 23:00 Hong Kong Time (i.e. 01:45, 06:15 and 15:00 GMT). Under normal circumstances, Hongkong Post will publish the latest CRL at "http://www.hongkongpost.gov.hk/crl/eCert.crl" or in the LDAP repository "ldap://ldap.hongkongpost.gov.hk" as soon as possible and within 15 minutes after the update time.

What is a digital certificate?

A digital certificate is a digital document attesting to the binding of a public key to an individual or other entity.

It allows verification of the claim that a specific public key does in fact belong to a specific individual.

Digi-Sign Certification Services Limited (Digi-Sign)

Digi-Sign is the first private CA recognised pursuant to the Electronic Transactions Ordinance. Its recognition status was granted by the Director of Information Technology Services in July 2001 on application by Digi-Sign.

Digi-Sign was only set up in October 2000. Its services as a certification authority was prior to its recognition operated by Tradelink (full name being Tradlink Electronic Commerce Limited). Digi-Sign is therefore a spin-off and wholly-owned subsidiary of Tradelink. At the time of the recognition, Digi-Sign issues two classes of recognised digital certificate.The two classes of recognised certificates are called ID-Cert. They are issued by Digi-Sign under the Certification Practice Statement (CPS) issued by Digi-Sign.

Personal ID-Cert Class 1 and

Organizational ID-Cert Class 2

Reference : see 'Recognition Status' page at Digi-Sign's web-site.

Like any other certification authorities, Digi-Sign publishes a CPS. It sets out the practices to register subscribers, verify the subscriber applications, manage and control the processing of digital certificate issuance, acceptance of the certificates by the subscribers, suspension and revocation of the certificate.

To download the CPS, please visit the relevant page and link at the web-site of Digi-Sign.

Recognition authority and Certificates

Director of Information Technology Services (DITS) is the authority to grant Government recognition

The Director may recognise certificates issued by a recognised authority as recognised certificates