E-Commerce in Trinidad & Tobago: An Overview of the Electronic Transaction Act (2011)

It was welcome news back in 2011 when the government finally passed the Electronic Transaction Act (2011) that would give legal effect to electronic documents, electronic records, electronic signatures and electronic transactions for online businesses operating in Trinidad & Tobago.

It was passed in the House of Representatives this 11th, February, 2011 and passed in the Senate 5th, April, 2011.

Passing legislation is just one part, the other part is it going into effect as law which requires an official ‘Proclamation’ by way of legal notice by the President of Trinidad & Tobago. Read entire Act.

The Act comprises ten (10) sections and as it stands in 2014, only half (5 sections) of the Act have been proclaimed via two (2) legal notices:

• Legal Notice #1 of 2012 which proclaimed Parts I, II, III and IV of the Act.
• Legal Notice #8 of 2012 which proclaimed Part VII.

Obviously, it goes without saying that any Act needs to be fully proclaimed into law for it to effectively guide and legally protect all parties therein.

The fact that Parts VIII and IX, which deals with consumer protection and enforcement, hasn’t been proclaimed means the Act is all bark and no bite at the moment and for all intents and purposes USELESS as nobody can be charged for committing an offense under the Act.

Overview of the Electronic Transactions Act (2011)

PART I: PRELIMINARY
(Proclaimed and in effect from 6 Jan 2012: Legal Notice #1)
This part defines the various terms used in the Act and what they mean, for example the term ‘Electronic Signature’  and what it legally means under the Act.

PART II: REQUIREMENT FOR LEGAL RECOGNITION
(Proclaimed and in effect from 6 Jan 2012: Legal Notice #1)
Outlines the legal requirement of information exchanged under the Act; the writing, provision of information, the specified non-electronic form, the original form, how it’s to be retained, copies, that electronically signed message be deemed original document

PART III: CONTRACT FORMATION AND DEFAULT PROVISION
(Proclaimed and in effect from 6 Jan 2012: Legal Notice #1)
What constitutes a contract under the Act, the formation and validity of the contract, electronic expression of offer and acceptance, use of agents, treatment of errors, legal time, date and location of message exchanges.

PART IV: ELECTRONIC SIGNATURE
(Proclaimed and in effect from 6 Jan 2012: Legal Notice #1)
Minimum standards for legally acquired signatures, reliability and integrity of electronic signatures.

PART V: ELECTRONIC AUTHENTICATION SERVICE PROVIDERS
Registration of Electronic Authentication Service Provider, requirements, recognition of external authentication products, compliance notification, audits, power of authority to deal with failure to meet requirements, liability of Electronic Authentication Service Provider issuing a qualified electronic authentication product and release from liability.

PART VI: INTERMEDIARIES AND TELECOMMUNICATIONS SERVICE PROVIDERS
Liability of intermediaries and telecommunications service providers product, Procedure for dealing with unlawful, defamatory, etc., information, Codes of conduct and service standards for intermediaries and telecommunications service providers.

PART VII: GOVERNMENT AND OTHER PUBLIC BODIES
(Proclaimed and in effect from 18 Jan 2012: Legal Notice #8)
This is for general authorization of government and public bodies to use electronic documents and carry out any of their functions using electronic means.

PART VIII: CONSUMER PROTECTION
To protect the online shopper, the minimum information in e-commerce that should be made available, for example: the legal name of the person, its principal geographic address, and an electronic means of contact or telephone number, proper description of goods and services, requirements of terms and conditions, methods of payment and the rights of the shopper to rescind the contract.

PART IX: CONTRAVENTION AND ENFORCEMENT
This part deals with providing false and misleading information, obstruction of an audit, breach of confidentiality, liability of directors and officers, penalties via fines and imprisonment.

PART X: MISCELLANEOUS
This final part deals with the duties of the directors, jurisdiction of the court and gives the Minister authority to make regulations for giving effect to the Act.

Consumer Protection for Trini Shoppers

Requirements of online sellers in Trinidad & Tobago

Notwithstanding the rest of the legislation, of particular importance to me is how the Trini online shopper is protected. Trinis are well aware that local businesses are more concerned with their own legal protection than theirs so it’s interesting to see what the Act has to say.

In a nutshell the Part VIII of the Act grants protection to consumers by making businesses using e-commerce to sell goods and services do the following:

1. Provide clear, accurate info about themselves and easy way to contact them
2. They must describe the goods/services clearly so that shoppers can make informed decisions
3. They must provide terms and conditions, policies for privacy, returns, exchanges cancellation, refunds, delivery and a copy of the contract must be provided to the customer
4. They must provide clear descriptions on it’s authentication procedure (for credit card processing) and process for complaints
5. If the above isn’t done then the customer has the right to rescind the contract within 30 days
6. The customer also has the right NOT to receive unsolicited emails without the option to opt out

Requirements are actually not difficult to meet

Those requirements go without saying don’t they? They’re standard elements of any trustworthy online store and nothing far removed from what we normally encounter when we’re shopping on any US sites.

Point six (6) doesn’t particularly sit well with me though. The exact text of this section is:

“Any person who sends unsolicited commercial communications through electronic media to consumers in Trinidad and Tobago or knowingly uses an intermediary or a telecommunications service provider in Trinidad and Tobago to send, or who has a place of business in Trinidad and Tobago and sends unsolicited electronic correspondence to consumers, shall provide the consumer with a clearly specified and easily activated option to opt out of receiving future communications.”

I interpret that to mean that it’s okay to send emails to anyone without their consent if there is an option to opt out, i.e. it’s okay to SPAM Trinis as long as you tell them they can say no to future SPAM. This seems to be a license to SPAM local consumers in my opinion.

My recommendation to state compliance of Part VIII on local E-Commerce websites

Though this section (Part VIII: Consumer Protection) isn’t yet law, I’m going to recommend to you and my clients too, that specific mention of this section be made on all local online stores, stating clearly what the law requires and how the site satisfies the requirements.

I’ll even go further to recommend a badge (graphic) that would be self-signed obviously, attesting an ETA (2011) Compliant website to give Trini shoppers the confidence and assurance that the online merchant was due diligent in complying with the law. But that’s just me…

Conclusion

I have no idea when the remainder of the sections will be proclaimed. I would obviously like to see Part VIII proclaimed as soon as possible. Meanwhile, there’s nothing stopping local online stores from taking front and start ensuring their own compliance not only to be ready for when the Act is fully law, but as just good business practice. Trini customers will definitely respect you for that.