NEWS AND COMMENT ON RECENT DEVELOPMENTS FROM AROUND THE WORLD1

CLSR Briefing

CLSR BRIEFING NEWS AND COMMENT ON RECENT DEVELOPMENTS FROM AROUND THE WORLD Compiled by Stephen Saxby, Editor

UNITED KINGDOM Consultation exercise on interception of communications by business extended The Secretary of State for Trade and Industry has extended the time period for consultation on the proposed Lawful Business Practice Regulations, under Section 4(2) of the Regulation of Investigatory Powers Act 2000 (RIP), to authorize the interception of communications by business in certain circumstances. The existing arrangements for the interception of communications are established in the Interception of Communications Act 1985. However, the Regulation of Investigatory Powers Act (which received Royal assent on 28 July 2000) will repeal the 1985 Act and provide for a new regime to govern the use of intrusive investigative techniques, including interception.The proposed regulation will authorize certain interceptions of telecommunications, which would otherwise be prohibited under Section 1 of the RIP Act 2000. The proposed regulations would allow businesses, registered charities and government authorities to intercept communications for certain evidentiary purposes. Interceptions would be authorized for monitoring or recording communications in the interests of national security, to prevent or detect crime, to investigate or detect unauthorized use of telecommunication systems, or to obtain evidence of the communications themselves, and also for monitoring communications made to charitable helplines. Interceptions will be authorized only if the interceptor has made reasonable efforts to inform the persons making or receiving

the communications of the possibility of interception or has reasonable grounds to be believe that they are aware of that possibility. Editor’s Note: The RIP Act 2000 is intended to provide a new regime to govern the use of intrusive investigative techniques, including interception. The legislation reflects changes which have taken place in the communications industry over the past 15 years and will ensure that the statutory basis for the use of such techniques is fully compliant with the requirements of the European Convention on Human Rights. The Act creates offences of unlawful interception on public telecommunication systems and a tort of unlawful interception on a private communication system by the operator of that system. The Act authorizes the interception of communications in cases where the interceptor has reasonable grounds to believe that both the sender and intended recipient have consented to the interception.The Act also provides for the Secretary of State to authorize interception in certain limited circumstances, by means of warrants issued to organizations, such as the security and intelligence agencies and the police. The Act is intended to bring Britain into compliance with Article 5(1) of Telecoms Data Protection Directive, adopted on December 1997, to safeguard the confidentiality of communications by means of a public telecommunications network. For further information, see: .

Electronic signatures legal in the UK On 25 July 2000, the relevant Section (Section 7) of the UK Electronic Communications Act 2000 came into

force under which electronic signatures and any certificate which supports them can be used as evidence in Court in much the same way as a handwritten signature.This is part of the UK Government’s overall aim to make the UK a centre for electronic commerce. The new Act implements (or the UK Department of Trade & Industry states that it does) a crucial element of the EU Electronic Signatures Directive (which has been adopted but has not yet been implemented by all Member States) which also concerns the legal admissibility of electronic signatures. The Directive was adopted in December 1999. The Electronic Communications Act received royal assent on 25 May 2000 but the relevant Section as regards the admissibility of electronic signatures was due to come into force two months later. A copy of the Act is available from: . Some academics have maintained that, in fact, the UK legislation does not quite cover all the matters required by the Electronic Signatures Directive but it is clear that the UK DTI takes the view that it does. Heather Rowe, Report Corres pondent, Lovells, London

New powers for Oftel in Electronic Communications Act 2000 Various provisions of the UK’s new Electronic Communications Act 2000 came into force on 25 July. Despite the fact that the prime purpose of the Act was to take some positive steps to encourage electronic commerce, such as giving broad recognition for digital signatures as being admissible in all

Computer Law & Security Report Vol. 16 no. 6 2000 ISSN 0267 3649/00/$20.00 © 2000 Elsevier Science Ltd. All rights reserved

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CLSR Briefing

types of proceedings and, also, giving the government enabling powers to pass legislation to encourage electronic communications, the Act also contained some provisions which do not obviously belong within such an Act. Those provisions have granted extended powers to the Office of Telecommunications (Oftel) and allowed the Director of Oftel to modify individual telecommunications licenses of public telecommunications operators without the need for consent if individual licensees do not formally object. Under the previous regime, under the Telecommunications Act 1984, the Director required the formal consent of an individual licensee to a proposed modification of the license. This was relatively simple when the 1984 Act was young, because there were very few operators, but the justification for the change, as far as Oftel is concerned, is that there are now a large number of PTOs in the UK market and a number of different license variation negotiations would be difficult to manage. In addition to being able to modify licenses in a way which is more flexible for Oftel, the Director General of Telecommunications also has a new power to modify individual licenses without the need for consent, if he decides that a proposed change is ‘deregulatory’. Such a change is one where the intended effect of the change would be to remove or reduce the regulatory burden on the licensee without removing any necessary protection for (or unduly disadvantaging) any competing PTO license holder. Oftel has been swift to propose using its new powers to create two ‘deregulatory’ changes. The first is to amend the individual licenses of all PTOs to align them with various changes that have been made recently in the licenses of BT and Concert. Secondly, the intention is to remove the express ‘Fair Trading Condition’ which is present in all PTO licenses, because this has effectively been replaced by general anti-competition provisions in the UK Competition Act 1998. The relevant section of the Act as regards telecommunications licenses is Section 11 which amends Section 12 of the Telecommunications Act 1984 and inserts into that section a new Section

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12A which governs the modification of licenses by the Director General of Oftel. Copies of the Act can be purchased from the UK Stationery Office and are also available on the Stationery Office website at: . Heather Rowe, Report Corres pondent, Lovells, London

New rights for home shopping consumers Consumers who purchase goods and services by phone, mail order, fax or via the Internet will soon be able to do so with greater confidence, according to new Regulations laid in Parliament in September. Minister for Europe, Helen Liddell, welcomed the Regulations which implement the Distance Selling Directive and come into force on 31 October 2000.She said: “These Regulations are good news for consumers buying goods and services from home. Millions of us now buy from catalogues and over the phone, and with the popularity of buying products on the Internet increasing daily, it is important that all consumers are protected and made aware of their rights. The Distance Selling Regulations provide statutory backing for the good business practices which many companies already observe and will help to ensure that this best practice is followed by all. Many consumers feel at a disadvantage when buying goods at a distance because they are unable to examine a product as they would do when buying it in a shop. These regulations help by giving consumers: • The right to receive clear information about the goods or services before deciding to purchase; • confirmation of this information in writing or in another appropriate durable medium, e.g. fax or E-mail; • subject to exceptions, a cooling off period of seven working days in which the consumer can withdraw from the contract; • unless agreed otherwise with the supplier, the right to receive goods or services within 30 days.” The Regulations also require suppliers who ‘cold call’ consumers at home to be clear about who they represent and what they are offering. Mrs Liddell

Computer Law & Security Report Vol. 16 no. 6 2000 ISSN 0267 3649/00/$20.00 © 2000 Elsevier Science Ltd. All rights reserved

commented: “When a supplier cold calls someone at home there is often confusion over what is on offer and who is behind the call.This can lead to consumers agreeing to something they don’t want or need and in the worst cases spending money without realizing what they are committing to. Under these regulations suppliers who ‘cold call’ consumers at home must identify clearly the company they represent and the commercial purpose of their call at the beginning of the conversation.” Outlining the penalty for failing to comply with the new Regulations, Mrs Liddell continued:“If a supplier fails to comply with the Regulations, consumers will be able to cancel the contract and have any money they may have paid up front refunded by the supplier.Where suppliers fail to refund the consumer’s money or fail to meet their statutory obligations the Director General of Fair Trading and Trading Standards Departments will be able to take proceedings for an injunction.” The DTI has consulted extensively before preparing the final version of the regulations. There will be a two-month transitional period to enable businesses to take on board the requirements of the Regulations. The DTI has already circulated 10 000 copies of an introductory guide for business and will in addition be placing a set of FAQs for business on the DTI website at: . Editor’s Note: 1. Consumer Protection (Distance Selling) Regulations 2000 implement Directive 97/EC of 20 May 1997 on the protection of consumers in respect of distance contracts (known as the Distance Selling Directive). 2. From 31 October 2000 the Regulations give legal protection to consumers who purchase goods and services via distance means. A distance contract is one where the Consumer and supplier do not have face to face contact up to and including the moment when the contract is concluded. The Directive covers the sale of goods or services concluded via E-commerce as well as other means of distance selling including mail order and telephone sales, and fax. 3.The Directive requires that the consumer be given information in writing or another “durable medium that is avail-