1. The law of evidence and e-commerce Presented by: Anthony Okulo Advocate High Court of Kenya Anthony.okulo@okulo.co.ke 25th August 2008Anthony. A Okulo LLB, LLM1

2. Introduction The objectives of this presentation is to: a) A nalyze and the law of evidence and e-commerce b) To determine whether electronic evidence is admissible in court under the Evidence Act cap 80 c) To preview the proposed Electronic Transactions Bill of 2007 25th August 2008Anthony. A Okulo LLB, LLM2

3. Topics of Discussion 1. Definition of e-commerce 2. The Evidence Act Cap 80 3. The Copyright Act No.11 of 2007 4. Conditions to be satisfied under the Evidence Act 5. Limitations of the law of evidence 6. The Electronic Transactions Bill of 2007 7. Offences and penalties 8. Conclusion 25th August 2008Anthony. A Okulo LLB, LLM3

4. E-Commerce E-commerce is the use of electronic networks to exchange or transfer business information, services, products and payments through the internet Electronic Transactions Bill, 2007 The internet is a worldwide computer network with three important facilities, amongst others that are provided via the internet, these are: e-mail, the worldwide web and Usenet. Godfrey v Demon Internet Ltd [1999] 4 All ER 342 25th August 2008Anthony. A Okulo LLB, LLM4

5. The Evidence Act Cap 80 “Evidence” denotes the means in which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved……an includes:  Statements by accused persons  Admissions  Observations by the court in its judicial capacity 25th August 2008Anthony. A Okulo LLB, LLM5

6. The Evidence Act Cap 80 Section 65 Primary evidence means the document itself is produced for inspection in court S65(1) Secondary evidence includes a) Certified copies b) Copies from the original by mechanical process c) Copies compared by the original d) Counter parts of the original e) Oral accounts of a document by a person who has seen them 25th August 2008Anthony. A Okulo LLB, LLM6

7. Copyright Act No. 11 of 2001 A “computer” means an electronic or similar device having information processing capabilities (section 2(1) Copyright Act 2001) A “computer program” means a set of instructions expressed in words, codes, schemes or in other form which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform a particular task or result. (section 2(1) Copyright Act 2001) 25th August 2008Anthony. A Okulo LLB, LLM7

8. Copyright Act No. 11 of 2001 Literary work means, irrespective of the quality...... a)...........(amongst others) b) Computer programs c) Tables and compilations of data including tables and compilations of data stored and embodied in a computer or a medium used in conjunction with a computer 25th August 2008Anthony. A Okulo LLB, LLM8

9. The Evidence Act Cap 80 Section 65 (5) (C) A statement contained in a document and included in printed material produced by a computer (computer print-out) shall if the following conditions are satisfied, be deemed to also be a document..... And shall be admissible in any proceedings without further proof of production of the original or of the facts stated therein of which direct evidence would be admissible. Hearsay rule: ‘ an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a fact asserted’ Cross and Tapper on Evidence (8 th edn, 1995) p46 25th August 2008Anthony. A Okulo LLB, LLM9

10. The Evidence Act Cap 80 Section 65 (6) (a)-(d) The computer print-out containing the statement must have been produced by the computer during the period in which the computer was regularly used to store or process the information for the purposes of any activities regularly carried on over that period by a person having lawful control over the use of the computer S.65 (6) (a) R v Governor of Brixton Prison, ex p Levin 1997 (HL)All E.R at 289 The print-outs are tended to prove the transfers of funds which they record. They do not assert that such transfers took place. They record the transfers themselves, created by the interaction between whoever purported to request the transfers and the computer program. The evidential status of the computer print- outs is no different from that of a photocopy of a forged cheque. 25th August 2008Anthony. A Okulo LLB, LLM10

11. The Evidence Act Cap 80 Section 65 (6) (a) – (d) The computer was operating properly or, if not, that any respect in which it was not operating properly was not such as to affect the production of the document or the accuracy of its content's 65 (6) (C ) Director of Public Prosecutions Versus Mckeown 1997 (HL) All ER at 737 The clock display of an Intoximeter was not functioning properly. The courts distinguished between a relevant and irrelevant malfunction. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. 25th August 2008Anthony. A Okulo LLB, LLM11

12. The Evidence Act Cap 80 Section 65 (6) (a) – (d) The Computer was, during the period to which the proceedings relate, used in the ordinary course of business regularly and was supplied with information of the kind contained in the document or the kind of information so contained is derived S. 65 (6) (b) The information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of business S. 65 (6) (d) 25th August 2008Anthony. A Okulo LLB, LLM12

13. The Evidence Act Cap 80 Section 65 (6) (7) (a)-(d) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried out or….was regularly performed by computers, by: a) By a combination of computers operating over that period… All computers used for that purpose during that period shall be treated for the purpose of this section as constituting a single computer and references in this section to a computer shall be construed accordingly 25th August 2008Anthony. A Okulo LLB, LLM13

14. The Evidence Act Cap 80 Section 65 (6) (7) (a)-(d) Combination of computers Godfrey vs Demon Internet Limited [1999] 4 ALL ER 342 The internet is a worldwide computer network with three important facilities, amongst others that are provided via the internet, these are; e-mail, the worldwide Web and Usenet 25th August 2008Anthony. A Okulo LLB, LLM14

15. The Evidence Act Cap 80 Section 65 (8) (7) (a)-(c ) Certification DPP v McKeown [1997] 1 All ER 737 This section is a specialized exception to the hearsay rule which on compliance with its conditions, enables evidence which …could have been given orally, to be given instead by a certificate admissible on mere production. Note: Hearsay rule: ‘ an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a fact asserted’ Cross and Tapper on Evidence (8 th edn, 1995) p46 25th August 2008Anthony. A Okulo LLB, LLM15

16. The Evidence Act Cap 80 Section 65 (9) (a)-(c ) Documents produced with or without human intervention Owners of Motor ship Sapporo Maru versus Owners of Steam Tanker Statue of liberty [1968] 2 All E.R. at 195 The defendants resisted the admissibility of a strip of film[that recorded two ships colliding at sea] on the grounds that it [was] a piece of evidence produced purely mechanically without human intervention and as such offends the hearsay rule. The court ruled that the law is bound to take cognizance of the fact that mechanical means have replace[d] human effort 25th August 2008Anthony. A Okulo LLB, LLM16

17. Limitations of existing laws Requirement to give information in writing Requirement to provide a signature Requirement to produce a document Requirement to record information Requirement to retain a document Must be in material form 25th August 2008Anthony. A Okulo LLB, LLM17

18. Limitations of existing laws THE EVIDENCE ACT DOES NOT RECOGNISE ELECTRONIC DATA All documents must be produced in material form 25th August 2008Anthony. A Okulo LLB, LLM18

19. Electronic Transactions Bill, 2007 Part 111 Section 6 Information shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic version 25th August 2008Anthony. A Okulo LLB, LLM19

20. Electronic Transactions Bill, 2007 Part 111 Section 8 Where the law requires information to be in writing, the requirement of the law is fulfilled if the information is contained in electronic version that is accessible and intelligible so as to be usable for subsequent reference 25th August 2008Anthony. A Okulo LLB, LLM20

21. Legal requirements (electronic versions) Legal requirements (contract formation) Recognition of electronic signatures Originality (forms) Originator and addressee Formation and validity of contracts Time and place of dispatch and receipts of electronic versions Time of contract formation Acknowledgement of receipts Attribution of electronic versions Automated message systems License for electronic certification services 25th August 2008Anthony. A Okulo LLB, LLM21

22. Liability of Service Providers Privacy and Security Mere conduit Caching Hosting Information location tools Unlawful activities Obligations to monitor Exemptions Protected information systems Security regulations Collection of personal information Accuracy of information Access to records 25th August 2008Anthony. A Okulo LLB, LLM22

23. E-GovernmentGeneral provisions Electronic filling and issue of documents Publication of rules and regulations in the Kenya Gazette Jurisdiction of the courts Restrictions on disclosure of information Limitation of liability Regulations 25th August 2008Anthony. A Okulo LLB, LLM23

24. Amendments to the Evidence Act Any information contained in an electronic record which is printed on a paper, stored, recorded or copied optical or electromagnetic media produced by a computer shall be deemed as a document and therefore admissible in court if certain conditions are satisfied………………. 25th August 2008Anthony. A Okulo LLB, LLM24

25. Amendments to the Penal Code Schedule C Unauthorised access Unauthorised data access Data Interference System Interference Electronic Fraud Electronic Forgery Misuse of electronic systems Unauthorized access to password Misuse of encryption Malicious code Cyber stalking Spamming Spoofing Unauthorized interception Cyber Terrorism Waging Cyber War Child Pornography Enhanced punishment Corporate liability Power of investigation officer to access electronic systems and data 25th August 2008Anthony. A Okulo LLB, LLM25

26. Conclusion THE ELECTRONIC TRANSACTIONS BILL,2007 WILL CREATE AN ENABLING ENVIRONMENT FOR E-COMMERCE TO FLORISH IN KENYA 25th August 2008Anthony. A Okulo LLB, LLM26