1. COMPETITION - McCarthy Tétrault

Sending such communication to recipients other than consumers is
permissible without prior consent if the recipient is explicitly given the
opportunity to object to receiving further messages (§ 107 para. 4 TKG
2003). By its clear wording, the legislature emphasized that sending
commercial communication to recipients other than consumers can no
longer be considered unfair competition or a violation of privacy or
property.
In any event, sending commercial e-mail or SMS is impermissible if the
identity of the sender, on whose behalf the communication is made, is
disguised or concealed, or if no valid address is provided to which the
recipient may send a request that such communication cease (§ 107 para.
5 TKG 2003). According to § 109 para. 3 TKG 2003, a violation of these
rules may warrant an imposable fine of up to $37,000.
The question remains whether the distinction between consumers and
non-consumers will assist the development of electronic commerce in
Austria. However, it is evident that Austria failed to accurately implement
Directive 2002/58/EC, which grants protection against the use of e-mail for
the purpose of direct marketing without prior consent to each recipient that
is a natural person (Art 13 para 1). The rights granted by Art 13 may not be
restricted by the Member States according to Art 15 para 1 of the Directive.
For more information please contact: thomas_fraiss@yahoo.de
UK
PERSISTENT MISUSE OF
ELECTRONIC COMMUNICATIONS
The Communications Act 2003 ("the Act") includes provisions aimed at
empowering OFCOM to deal with behaviour which amounts to a 'persistent
misuse' of an electronic communications system or network, but which falls
short of constituting a criminal offence. The relevant powers of
enforcement are provided to OFCOM in sections 128 & 131 of the Act.
Under section 131, OFCOM is required to publish a statement outlining its
general policy toward the exercise of its powers under the Act dealing with
the persistent misuse of a relevant network or service. OFCOM published
its policy statement in this regard on 28 August 2003.
The Act defines "persistent misuse" as behaviour that has the effect, or
likely effect, of causing someone to suffer annoyance, inconvenience or
anxiety. The new rules are a consumer protection measure designed to
protect consumers. OFTEL has stated that it considers that conduct will
have the "likely effect" of causing annoyance, inconvenience or anxiety if
such an effect is "probable", but not necessarily proven. In considering
whether a person has "persistently" misused a network, OFTEL will look at
the number, frequency and regularity of the alleged behaviour. It is not
necessary that the conduct involve the same network or service on each
occasion or that the same person be the target of the conduct in order for
behaviour to be persistent.
OFTEL has identified six general areas in which the persistent misuse of
networks is most likely to occur: the misuse of automatic calling equipment
to undertake short duration calls, recorded messages or fax messages
without the consent of the recipient; silent or short duration calls (where the
caller hangs up before the recipient has time to answer); number scanning
to determine whether telephone numbers are in service or not; misuse of
calling line identification (CLI) technology, such as the forwarding of
misleading or inauthentic CLI information; dishonest or fraudulent activities
such as directing consumers misleadingly to premium rate numbers; and
misuse of allocated telephone numbers.
For more information please contact: colin.long@olswang.com
4. DIGITAL SIGNATURES
MEXICO
NEW REGULATIONS ON ELECTRONIC SIGNATURE
On 29th August 2003, the Federal Official Gazette ("Diario Oficial de la
Federación") published several amendments to the Federal Commercial
Code (the "Code") on electronic commerce to regulate electronic
signatures. The amendments aim to give more sustenance to prior
amendments of May 2000, where several provisions on Data Messages,
their implications in contract formation, and their validity as courtroom
evidence were incorporated into the Code, the Federal Civil Code, and the
Federal Law on Consumer Protection. Critics of the May 2000
amendments claim they did not adopt all provisions of the UNCITRAL
model law on Electronic Commerce. The amendments of 29th August 2003
should remedy this deficiency by establishing rules that consider the
delivery and receipt of data messages and the preservation of said
messages.
The main principles adhered to in the new amendments are: technological
neutrality, contractual freedom of the parties, international compatibility,
and functional equivalence of data messages, with respect to the
information contained therein and the electronic signature vis à vis the
handwritten signature. While the May 2000 amendments had simply
mentioned the notion of an electronic or digital signature, the new
amendments elaborate on this idea by adopting the provisions of the
UNICTRAL Model law on Electronic Signatures. The new amendments
thus give regard to public key infrastructure models and seek to grant the
same validity to electronic signatures as that afforded to handwritten
signatures. Under the amendments to the Code, the electronic signature
will be deemed reliable if:
• the data related to the creation of the signature is exclusive of the
signatory;
• the data related to the creation of the signature is under the exclusive
control of the signatory;
• it is possible to detect any alteration on the electronic signature after
its signature; and
• as to the integrity of data messages, it is possible to detect any
alterations thereto after signature.
As was the case with the UNCITRAL Model law on Electronic Signatures,
the amendments imposed a series of obligations on:
• the issuer of the message;
• the providers of certification services (a concept that is also adopted in
this amendment); and
• the recipient of the message.
Among said obligations, the signatory is bound to act diligently to establish
reasonable means to avoid the non-authorized use of the data related to
the creation of the signature, while the recipient is bound to verify the
reliability of the electronic signature or of the validity of the certificate
issued to support the corresponding signature.
Notary publics and private entities will be able to apply to become
certification service providers before the Ministry of Economy under certain
rules to be enacted by the Ministry within 90 days from the publication of
the amendments. The amendments will become enforceable on that date.
Among other responsibilities, certification service providers must verify the
identity of any applicant and any other relevant circumstances for the
ISSUE 22 SEPTEMBER – OCTOBER 2003 4