Image of Kaieteur Falls in Guyana by Jolanda de Koning from Pixabay

Guyana is about to strip itself of a, no doubt, undesirable status: it is one of only two remaining Caribbean jurisdictions without a substantive e-commerce law.

The Ministry of Tourism, Industry and Commerce published a draft act – The Electronic Communications and Transactions Bill, 2019 in early October, 2020. The public comment period for the ECT Bill closed on November 2, 2020.

The ECT Bill is intended to result in an act that will:

… provide for the facilitation and regulation of secure electronic communications and transactions and for their legal recognition, to promote the development of the legal and business infrastructure necessary to implement secure electronic commerce and to enhance efficient delivery of governance by public authorities by means of reliable electronic records and electronic filing of documents and for related matters.

What’s the Point?

You may ask “Why pass e-commerce laws like the ECT Bill at all?”. The short answer is: less uncertainty.

Internet-based transactions are the new normal. A number of legal grey areas tend to be inherent in doing business this way, however.

The question of jurisdiction provides a classic illustration of this grey area. Consider this: you are physically in Country A, the website you just purchased an item from is in Country B and something went horribly wrong. Where do you sue? Country A where you are? Country B where the website is registered? Or is it Country C where the website servers are located? Let’s not even start pondering Country D where the goods are physically located that you paid for.

Even less heady issues often admit of uncertainty too. Is clicking a button on a website after reading its terms and conditions as valid a form of consent to the website’s terms as physically placing your wet-ink signature on a paper containing contractual terms?

Laws like the proposed ECT Bill help to lessen some of these grey areas by bringing greater certainty and confidence when transacting online. The ECT Bill does not attempt to change the fundamentals of contracting law that have always governed relationships between parties. It merely creates a sense of legal predictability so that citizens transitioning into the digital space will have familiar legal outcomes.

Plainly, whenever Azad in Demarara buys a toy car for his son on a website, the proposed ECT will mean that the contract underlying that transaction is as valid as if he walked into a store to buy it.

What’s under the hood?

So, how exactly does the ECT Bill achieve greater legal certainty for Guyanese citizens? The ECT Bill, in its current form, spans 46 pages and is divided into 10 parts:

  • Part 1 – Preliminary considerations
  • Part 2 – Legal requirements respecting electronic records
  • Part 3 – Electronic Contracts
  • Pat 4 – Electronic Signatures
  • Part 5 – Secure Electronic Communications, Records and Signatures
  • Part 6 – Electronic Security Procedures Providers
  • Part 7 – Electronic Records, Information, Signatures, Electronic Systems in Public Authorities
  • Part 8 – Intermediaries and Electronic-Commerce Service Providers
  • Part 9 – Consumer Protection
  • Part 10 – Miscellaneous Provisions

Notable Features of the Guyana ECT Bill

Wide scope of exceptions

It is not unusual for e-commerce legislation in the Caribbean to outline, in broad terms, that most transactions entered into may be carried out electronically and thereafter, list a number of exceptions. The usual exceptions found in electronic commerce legislation are wills, the creation or transfer of an interest in land, or declarations related to either trusts or power of attorney documents.

The exceptions to the application of the ECT Bill extend beyond the usual exceptions outlined above. Also excepted are: negotiable instruments, title documents, as well as court orders, notices and other official court documents to be executed in respect of court proceedings.

Sub Silentio Privacy Compliance?

Section 44 places consumer protection obligations on businesses that engage in e-commerce. It includes a mandate for those entities to provide privacy policies. Guyana does not currently have a stand-alone privacy law in effect. If the ECT Bill becomes law before such an act is passed, it is arguable that this provision will effectively jump-start a very basic aspect of privacy compliance in the South Caribbean nation.

Intermediary Liability

Entities on the internet that allow information to be sent, shared or stored on behalf of others are known as intermediaries. The propose ECT Bill includes language that largely immunises intermediaries from liability in situations where an electronic communication results in civil or criminal liability. By way of example, the intermediary liability language in the ECT Bill would mean that (oversimplification) Facebook or GTT will not be liable in situations where a message passed through their platforms or infrastructure that turned out to be defamatory.

That the proposed ECT Bill includes this language is not noteworthy. It is commonplace is most similar laws throughout the Caribbean. What is novel about the ECT Bill is that it defines the concept with marked specificity. Under the proposed act, an intermediary will expressly include the following: telecommunication service providers, network service providers, internet service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.

Next Steps

The ECT Bill drafters are expected to take account of the feedback received during the commentary period. After any further refining, it will be tabled in Parliament and, eventually passed.

No set timeframe has been indicated for completing any of the foregoing steps as yet.

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Published by bartlettmorgan

Attorney at Law in the Commonwealth Caribbean. Focused on developments in the internet law sphere.