Vol-7, Special Issue3-April, 2016, pp604-614 http://www.bipublication.com
Research Article
Legal Review of Data Message and Transactions through E-Commerce within
the Framework of E-Commerce Law of Iran
Ali Shirpour
MA in International Law,
Islamic Azad University of Boushehr, Iran Email: ali_shirpour69@yahoo.com
Tel: +989166699371
ABSTRACT
Economic transformation and development in Iran, now with the lifting of international sanctions and the countries desire to invest in Iran, and moving to a growing economic space with the reforms in the economic structure of the country, provides prosperity and mobility needs in this area. In this way, what is very important is revision of the common rules and policies in Iran. Amending in Attracting foreign investment law and Electronic Commerce legislation are obvious examples of this changes in the Iranian legal system. Insufficiency of existing laws and regulations in Iran on the one hand and the absence of financial rules governing the international trade On the other hand, and finally the existence of political - economic differences are considered as Barriers to electronic commerce. Amending all laws, regulations, byelaw and circulars and instructions that are somehow related to commerce and production and compatible with the specifications and requirements of electronic commerce, is essential. In this article, in addition to a brief description about the Electronic Commerce in the introduction, we will try to Examine the economic activities in the first and second parts of Electronic Commerce in this area and then examine the message data and its role in e-commerce, And in the end, the need for Amending and updating the e-commerce law will be discussed.
Keywords: Electronic Commerce, message data, Electronic Commerce law, international trade, Electronic Commerce
Act
INTRODUCTION
"Law" is one of the most social fields of social activity and in life Which is deeply mixed With all forms of political and the economy activity. Rights is Constantly Interacting and exchanging with transformation of different systems in the community and the secret of survival And continuity of legal rules is in matching it with new requirements and conditions. Growing and developing communities by finding economic, political and social mechanisms are looking to evolve and progress; therefore change in this type of in communities is always expressed as either "damage" And as an "opportunity". "Damage"
At the global level. In the present era which has become known as the era of "globalization", the business tools has also become global and without hesitation "free trade" and "e-commerce" are from the distinguishing feature of "globalization". Therefore codification and regulations commensurate with economic developments, is considered as the guarantor of the economic development of the country[5].In fact, e-commerce is the process of buying and selling products and services on the internet And can be divided into several groups: Trade between firms and consumers or customers (B2C), Trade between firms and firms (B2B), And trade between the consumer and the consumer (C2C) which commercial activities have focused mainly within the first and second framework (B2B and B2C). However, in the future B2A and C2A commercial activities will be predictable too, which in the following discussion we will briefly introduce each of them.
B2B (BUSINESS TO BUSINESS): In this service Parties to the transaction are companies. An example of this type of business is performance of a company which use a network to order manufacturers, get the Performa and invoice and also the payment of fees. For example, the interaction between the two sets of car manufacturers and parts makers reduce costs, Improve quality and increase production speed of the vehicle.B2C (BUSINESS TO CONSUMER): In this service companies are in contact with customers, the largest share in e-commerce is from this type of purchase and sale. Trade between the seller and the buyer which is currently one of the most common functions in the area of electronic commerce on the Internet is considered from this type. In B2C E-commerce between firms and customers is very common. At the moment the first ten group of services and goods which their sales will be provided via the Internet And is done on the basis of B2C Include: Hardware, the traveling stuff, tourism, books, music, send gifts and flowers and foods and beverages, jewelry, sporting and electronic goods,
that Some of which are also on the list of our country exports .. C2C (Consumer To Consumer): Parties to the transaction are people. The client is a person who buys material or goods from the other person. Activities of travel agents, railway or any other services Of This type, can be regarded as such transactions.
Conducts auctions and tenders of goods over the Internet, are placed in this category of e-commerce.B2A (BUSINESS TO ADMINISTRATION): variety of commercial transactions between companies and government agencies, Payment of duties and taxes, constitute examples of the B2A activities.C2A (Consumer to Administration): This type of communication, involves areas such as collecting donations, Pay income tax, and any other commercial affairs between the government and the people And will be extended. For example, this phase started in France and people can declare their taxes on Internet or pay their contributions through it. E-commerce compared to usual and common business has capabilities and advantages, from the major advantage of e-commerce the followings can be named:contact the global market, a strong connections between companies, create backup, reducing the time, increase business growth and sales and income, create new employment opportunities, quick access to information, reduce advertising costs, Improve interaction with customers.With proper design of network and the use of relevant tools, the ability to establish mutual relationship with customers with safer procedures and at no cost, is provided. For example, the customer would be sure from his order by receiving an e-mail after ordering, or in case of sending goods to the customer; He can be informed via e-mail. A happy and satisfied consumer will always have the desire to repurchase from the product-provider Company or institution [6]
THE FIRST PART: STEPS OF THE E-COMMERCE IMPLEMENTATION
created many Justice and legal conflicts. This has caused many problems to find a solution, codification of the law and appropriate penalties. The question that arises is that how on the Internet, All the people who want to use e-commerce be under Legal protection. The purpose of legal protection, is a contract that all natural personalities according to the contract that they signed could be protected. In the case of companies and public institutions, which has a legal personality no problem can be seen in this case. Because they are bound to observe the provisions and codified laws that reigns on their e-Commerce relations. At first glance it seems The early obstacles and problems in Iran are The same obstacles and problems in advanced societies but with a little reflection we realize that problems and obstacles in Iran are beyond that E-Commerce Act would be possible and become executive without hesitation or reload, Because as long as Primary E-commerce operation (The phone purchase, purchase via TV) which is the source of e-commerce haven't become practical and until the consumer are not familiar with how such transactions get done, you cannot build a common e-commerce in Iran. At present the main problems and challenges In front of the development of electronic commerce in the country is as follows: 1 .Unpreparedness of cultural conditions
2. The traditional commerce and trade system 3. Unequipped human resources
4. The lack of technical and telecommunications infrastructure (communications technology) 5. Unaligned rules and regulations with a the
electronic environment
6. The lack of banking, insurance, transport and customs e-commerce and electronics.
The following are among the most important things that can make clear pre mentioned justice and legal problems.
a. Signing a contract in e-commerce (electronic signature)
In French law or most European countries Offer and acceptance and validity of a contract is Based on The principle of autonomy, can be achieved by
signatures to these offices, Offices define Signature, and provide to the seller, and seller could never access to the early code of Signature. About Certification Service Provider, Article 31 of the Electronic Commerce Act says: "Certification Service Providers are established to provide electronic signature services nationwide. These services consist of generation, issuance, transmission, confirmation, dismissal and update of electronic signature certificates".Based on the above article And the aforementioned, I can be said that "electronic signatures" From the health and safety of it, Compared to Hand signatures is More important and Certification Service Providers are Units that prevent Electronic signature counterfeiting, According to the above explanation its necessary To review the electronic signature in e-commerce law: Article 2 of the Electronic Commerce Act In paragraphs J, K and L defines electronic signature as: "Any sign appended or logically affixed to a “data message” which may be used to identify its signatory." Then in paragraph K, make conditions of Electronic signature authenticity subject to compliance Article 10. Article 10 stipulates that: "A secure electronic signature must contain the following requirements:
a) Be unique to the signatory.
b) Identify the signatory of "data message." c) Be signed by the signatory or under his/her sole
intention.
d) Be affixed to “data message” in a way that any change in data message can be detected andidentified".
According to the Referent of the abovementioned act It can be stated that whatever the legislator at the time of writing the aforementioned law has write, is considered according to the experiences of other countries In this regard, But practice of paragraphs (a) to (d) will lead to other problems, for example obtaining the exclusive determination of signer In case of doubt In autonomy, requires Broader Legal measures.After reviewing electronic signature In Part I, in the second part
we explains the method of payment in e-commerce:
B. Mode of money payment in e-commerce (electronic payment methods)
Due to the growth of the Internet and the purchase of goods via the Internet, Various solutions have been proposed for payment in e-commerce. In fact, the payment in e-commerce, Requires cheap and fast payment solutions. In this regard, various payment methods have been developed, each with its own capabilities. Due to the importance of the issue it is necessary to point out the different methods of payment in the field of e-commerce here. Electronic payment methods:
1. Systems using credit cards, in this system, natural or legal persons by signing contracts with the intended bank receive Credit card and pay by credit card takes place Like MASTERCARD and VISA. Now credit cards in most European and American countries are common for everyday payments.
to embedding "series of numbers" on the card, should also insert expire date of the card which is consist of 4 digits (year and month).Of course, there are other ways to pay by credit card, For example entering a few numbers from the sets of numbers on credit card by internet, and entering through the phone keypad after the order is done, and then enters the rest of numbers, although this method is in the testing phase, and has not materialized [2].The third and last important conflict in e-commerce is respect for the norms of society and government in e-commerce that we will describe it.
C. Respect for the norms of society and government in e-commerce
If we want to get into e-commerce we have to communicate directly with international trade. E-commerce have swept across borders, today in the world, E-commerce is developing rapidly. It is Expected from 2002 to 2006 Electronic commerce, on average, Will grow at least 54%. However with the creation of any system, its opposite should be noted too, and try to remove the dangers of e-commerce misuse. In this regard, we discuss this issue in two points. The first point is that How in the implementation of e-commerce, norms of society is respected? We know that any society have its own legal conditions and customary, For this issue on the first page of a network Information about it should be listed so the person get informed about network activity and in case of entry into this network, Enter with complete certainty of the content network. In France about immoral networks And public morals the general conditions Should be inserted into the first page and to log on to the network, Requiring to be older than 18 years be mentioned too. However, in many countries login to these networks is prohibited, but because the international internet network inevitably, we'll need to think about solutions. One of the solutions is Use and installs the filter software in the main entrance (server) or personal computer. The second point, the fear and continuing uncertainty Related to e-commerce security inevitably makes
us to investigate international crimes that occur on the Internet. Most serious crimes are social and moral offenses. for example: Child trafficking, Pornographic network, and other cybercrimes such as drug dealing, War weapons, banned drugs, or terrorist networks that can exchange information between themselves. The question that brings to mind here is that: How such crimes can be prevented? In response "Internet police" should be noted that if in the country problems was created on the network, Internet domestic Police can be activated. By training the internet police easily this kind of crimes can be easily prevented. About international crimes that occur on the Internet, we explain with an example, in the early 2000s many problems about Children intimacy and children trafficking in Europe arose, Internet police through cooperation with the entire Internet polices were able to identify criminals and in a day and an hour arrest all of them in all concerned countries. Therefore it can be seen that most problems with scrutiny and appropriate legal solution and proper education can be solved logically. After examining the significance judicial conflicts we will review less important judicial conflicts.
Part II. Legal framework in the implementation of e-commerce
One advantage of e-commerce is that Consumers can Order their desired products from his/her country or his/her place of residence and the only issue that arises is Seeing and touching [checkup] of the Product. For example, to buy a carpet do we have to come from France to Iran or just watching on the Internet and ordering it is enough? Which legal rule applies in this issue? In continue we try to divide less important judicial Conflicts In the e-commerce in the two categories and to evaluate them.
a. Insufficiency of principles, rules and existing regulations
relatively uniform principles and rules. Existence of a series of Clear and transparent laws and regulations and the need for consumer protection And indemnification of damages caused to it are from the basics issues of this is essential and important matter. However, the adoption of the Electronic Commerce Act Has created This hope among jurists and legal experts that Our legal system After years of avoiding From acceptance of achievements of Other legal systems, By identifying and understanding these achievements In the domestic legal system has provided growth and economic development And facilitate trade relations.Coordination of the Electronic Commerce Act With the mother And development of other laws Including the civil law, Commercial Law, The Civil Procedure Act And ... is inevitable. Insufficiency of existing laws and regulations in Iran On one hand, And the absence of laws And rules Governing the international trade which goes beyond Financial aspects On the other hand And finally, Existence of political tack differences - economic Are among the barriers to e-commerce. Amending all laws and regulations, Regulations and circulars and Instructions that somehow are Related To the production and trade and Compatible with Profile And the requirements of e-commerce, Is a necessity that Requires Prompt and effective action. As noted above, Among the barriers to the development of e-commerce in our country, Insufficiency of existing laws and regulations On one hand, And the absence of laws And rules Governing the international trade which goes beyond Financial aspects On the other hand, It should be noted that the government In recent years, Has done Admirable efforts in order To mitigate these shortcomings and Legislation and new regulations To encourage e-commerce.
B. Amending the Electronic Commerce Act By examining the above-mentioned provisions of the Act, We see that Although appropriate and rational Strategies has been Considered In mentioned law, But with all this, This law is not void of legal problems. After nearly fourteen years
from the adoption of the Electronic Commerce Act of the Islamic Republic of Iran In August 2002, what progress came into being in this regard? Although at the university level more or less Changes can be seen at the majors such as economy but we should seriously look into this topic.Any law has been created based on a series of legal resources, Evaluation of resources of a law is from The first steps of the Codification of a law, For example, trade rules, Civil and public law, trade Customs and habits, Scientific theories are from Sources of the commercial law. It seems that in the Codification of e-commerce law, the legislator did not consider all available resources. From the most important issues in e-commerce is Consumer Protection. Nowadays, e-commerce, is a global business (From one country to another country) so it requires that a comprehensive law be governed to it[3].
at the late 19th century, Following this topic Europe Propounded Several important issues with the United States But all these negotiations have been Without consequence, The reason is that United States Does not want consumer protection By a legal text Or specific provisions, They leave Creation of Judicial procedures And morality To the consumer And Seller But Europe insists to Officially Declare a single legal text to consumer, for this reason Europe start to codification European regulations So that all Member States Know It indispensable. It's not useless to review some provisions of this regulation and briefly begin to comparative study it to E-commerce law in Iran . A. the deal Case: Information about the product (data message) for consumer should be clear and explicit; Dimensions of quality, gender and in short everything else which is related to the deal Case . Article 33 of the Electronic Commerce Act addressed this issue and provides:
a) Technical specifications and functional characteristics of goods or services.
b) The identity of the supplier, the trade name under which he is working and his address. c) E-mail address, telephone number, or any
method by which the customer, when needed, can contact the seller.
d) All the expenses that will be charged to the customer for the purchase of goods (including the price of goods or services, tax, freight cost, calling charges).
e) The period for which the offer remains valid. f) Terms and process of contract including
payment terms and arrangements, delivery or implementation, cancellation, return, after-sales services.
B. Order: If the consumer orders through the Internet, The seller must record the order and declare the way of order to the consumer. In this regard, Article 34 of the Electronic Commerce Act of Iran provides:
"Along with approving the preliminary information, the supplier shall also separately send the following pieces of information:
a) The business or work address of the supplier for possible complaints.
b) Information on after-sales services and guarantees.
c) Terms and conditions to terminate the contract according to Articles 37 and 38 of this Law. d) Terms and conditions of cancellation in service
contracts.
C. Goods Delivery: Seller shall within 30 days Act to deliver the goods, it is obvious that after the expiry of thirty days, the contract Terminated and Amount and The damage caused by it should be extradited to the consumer.
In this regard, Article 39 provides that: "Where a supplier fails to perform his side of the contract on the grounds that the goods are unavailable or services cannot be performed, he is bound to immediately refund the sums he has received to the addressee unless in case of sale of merchandise of a general description and obligations whose fulfillment is not impossible for
ever and the addressee is willing to wait until the availability of goods or performance of obligation. If the supplier turns out to be aware of his incapability of performing his obligation from the beginning, in addition to being bound to reimburse the sums he has received, he is sentenced to the maximum punishment under this Law".
"The lack of solid evidence" Such as paper for submission to courts if necessary to solve the above problems If Steps to set up contract and giving credit to an electronic document, by specific legal provisions and fully maintained, there will be no Problem. In Iran problems caused by "The lack of consumer confidence" could not be solved, Due to lack of sufficient background and only confined to a few general provision in the Electronic Commerce Act, However, to raise consumer confidence Assign two separate rule for consumer is necessary. We should develop, One "The law on consumer protection inside the country" And second, "The law of consumer protection at the international level" for consumer to be aware of the jurisdiction of the judiciary and what law is consistent with its legal actions. For example, some provision of the e-commerce provisions can be mentioned in this regard. From cases mentioned in the law, we can point to Article 3 which arise "good faith."
Electronic Commerce Act, Article 3 provides that: "The international origin, the need to promote uniformity in its application, and the observance of good faith should always be taken into consideration in the interpretations of this Law".While the principle of good faith one of the important issues to be discussed in legal topics and this rule is especially important in the international debate and has the legal effect and wide consequences, but unfortunately this rule until the enactment of the Electronic Commerce Act had not been raised in the legal provisions of the country. Articles 37 and 38 of the Electronic Commerce Act present Termination of deal that is specific to the consumer But it was better that "The right to terminate the contract" In accordance with the provisions of the termination of the transaction to be In the accordance with the Civil Code. Articles 58 and 59 of the Electronic Commerce Act raised "The secrecy and confidentiality of information" And that is from the important things that should have been envisaged in other rules and it cannot only be relied on the Electronic Commerce Act.Article 58
of the Electronic Commerce Act provides: "Storing, processing or distributing private "data messages" which may reveal tribal or ethnic origins, moral and religious beliefs, ethical characteristics, and “data messages” regarding the physical, psychological, or sexual condition of people, without their explicit consent is illegal". Article 59 – Upon the consent of the person who is the subject of a "data message", provided that the content of the "data message" is in accordance with statute laws of the Islamic Consultative Assembly, storing, processing, and distributing personal "data messages" via electronic means shall be subject to the following terms:
a) Its goals shall be specified and clearly described.
b) The "data message" shall be collected to the required extent and in compliance with the goals described to the person who is the subject of the "data message" while collecting the information and be applied merely for the goals set out therein.
c) The "data message" shall be correct and up-to-date.
Part Three: Data message A. Definition of data message
B) The importance of data message
In order to remove legal obstacles, Data message plays key role because all transactions in cyberspace is done in the form of data message. This issue is stated in Article 5 of the Electronic Commerce Model law, which provides: "((Information solely because they are in the form of data messages should not be ineffective, the validity and legal executive function.)) Model law In the Article 6 declares: ((in a condition where being written is required, Such as contracts, Message met the written condition And removal the legal barrier, Provided that be in a format that be available for future reference and use.)) In cases where being signed is the condition, Such as a contract, data message met the written condition And removal the legal barrier as long as it determine the identity of the signer. Article 7 of the Electronic Commerce Law in Iran provides: "Where the law requires a signature, an electronic signature may suffice." Article 8 of the Electronic Commerce Law in Iran provides: "Where the law requires that the information be presented or retained in its original form, it is also possible to retain it as “data message”" However, with conditions that are mentioned in this article. Article 12 of the Electronic Commerce Law in Iran provides: "Evidence and any supporting document may be in the form of “data message”. The evidential value of a “data message” can by no means be repudiated solely due to its form and framework at any court or governmental office." Information that is in the form of a data message are also legally effective, valid and applicable. Article 14 of the Electronic Commerce Law in Iran Is based on the principle of non-discrimination that do not discriminate between information contained in the paper and data message and considered both equally valid. UN Commission on International Trade Law Since 1986 has started efforts to legally identify "The reason electronically" And finally, in 1996 by the passage of the e-commerce Model law, has accepted including credibility and probative value data message. Article 9 of this law, under
acceptance and probative value of data messages provides that:
1 ) In a legal proceedingnone of the rules of evidence would not be applied in a way that rejects Data message as a reason solely because of the following:
A) Due to it being as Data messages or B) whenever the data message was the best reason that the person who Adduce it could reasonably and conventionally achieved because it is not in its original form.
2) The information presented as Data Message has the proper probative value..."
Paragraph (a) of Article 7 of the US Uniform Code of electronically transactions (UETA) provides that: "Legal effect or applicability of the document or signature cannot be rejected merely because of its electronic form".
process. If this information be a symbol of an event or have a concept or indicate of something, is called Data message. Data message should be signed, when Electronic scrip was created, like normal documents it should have signature, seal or fingerprint. The purpose of having signature, being sealed or has fingerprint of a normal document, is the possibility of assigning them to the signer, inhibitors or holder fingerprint. In Electronic scrip, electronic signature plays the role of traditional signature and other ways to verify the authenticity of documents and possibility of assign them to the author of the document. So as the scrip must have signature to be valid, Data messages without digital signature is worthless. In e-commerce law of Iran, Electronic signature is any mark attached or be reasonably connected to "data message" to identify the signer of "Data message" Which is used to identify the signatory.Electronic signature is different than what we insert under our scrip and documents. The purpose of the Phrase "Any sign" in this Article In cyberspace is usually numbers or letters or a combination of both which is known as a password and the possibility of identify an example of electronic signature That connects owner to his/her bank account. In electronic exchange via e-mail, the e-mail Address (or email) of that Person is considered as a password; because every address is unique to a person and only that person can access its contents and exchange information through it. As a result receiving e-mail from a person is Imputable to him/her unless proven otherwise. So the concept of signature on the Internet is different with what we draw as a signature on paper. Key features of Digital signatures are including:
1. In production of them, information that is unique to the signer is used.
2. Automatically generated by computer.
3. Signing each message is dependent on all bits of the message and any manipulation in text of the document corrupts the signature of message. 4. Signingany document is different with signing other documents.
5. It should be easily reviewed and approved so the possible forgery and denial of it be prevented. The basic structure of digital signature is that Author of Electronic Information; sign this information by his/her private encryption key. The key must by user be kept secret forever. Signature by the corresponding public key signing is document control. The public key is visible and accessible by the general public. the Point that is Notable is that usually the place of signature In communications and paper documents does not matter to the legislator, Means whether the signature be on top of the document, whether in the middle or at the bottom of it, It is valid, Because Article 1301 of the Iranian Civil Code For a general rule Regardless of the signature place on the document stated: "Signature that Be on a document or scrip, is reason To the detriment of Signatory". In communications and electronic documents is the same. For example, in communication via e-mail, Email address of sender which is considered as the electronic signature Appears at the top of the content of e-mail, not at the bottom of it and this is not a reason for discrediting its provisions.
C: The law governing the paper and electronic documents
amount of their credit should be Survey based on the law of the place they have been set [1].Of course, the immovable property ownership documents cannot be electronically adjusted. Means transfer of immovable property Such as land and propertymust be in accordance with the legal formalities and paper documents. So we can say: contracts that are governed to the transfer of immovable property are not electronically adjustable. Contracts are electronically adjustable that Subject of Contract be Apart from immovable property and those exceptions In Article 6 of the E-Commerce Law. So for the following, traditional way can only be used:
A. real estate ownership documents
B. sells pharmaceuticals to final consumers. C. the declaration, notification, warning or similar phrases that state Special orders for using goods.
CONCLUSION
Information technology has made it possible for many trades, transactions and services to be done through the Internet. Extension of this type of trade and commerce relations between people was accompanied with presenting some legal issues in the context of the rules governing Contractual relations of people. Recognition of modern communication technologies in the contracts, the ability to attribute electronic documents, the way of electronic payments, existence of personal blogs, political and personal sites and... in case of the accuracy of their reliance to natural or legal persons can be considered in court as evidence in lawsuit. Electronic signature in Iranian trade law has been anticipated as one of the actions with legal effects matched with the manual signature. According to the aforementioned article whenever law requires a signature, an electronic signature is suffice. By providing the necessary technical infrastructure it can be said that electronic Signature In terms of legal effects does not have any difference than handwritten signatures and electronic signatures According to regulations can be considered as evidence.Laws that have been
enacted on e-commerce (Including Electronic Commerce Act of Iran) their aim were not establish new and specific legal rules But this kind of legislation In fact, recognition of innovative electronics tools In legal and Trading relations of people which have been established for gain public confidence and set relationship on people. Performing various electronically transactions (including commercial, etc) Is still expanding and so far different rules and regulations have been established in this regard, The purpose of all of them has been to facilitate and secure electronic transactions, Because in the absence of appropriate principles, Business activities of this type Face disruption and disorder and consequently, people will prefer traditional methods to e-commerce. Electronic Commerce Act of the Islamic Republic of Iran Adopted in 2003 is an important step in the development of electronic transactions and make it systematic which also requires more reflect and contemplation, And reaching it will not be possible, Except through a closer study of available resources in this regard, Therefore suggestions like Reforming E-commerce Law Especially in cases with ambiguity Or fixing issues that In Electronic Commerce Act has not been Referred to Such as law governing electronic documents Is admissible.
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