UNCITRAL Colloquium on Electronic Commerce

1. UNCITRAL Colloquium on Electronic Commerce Legal issues of m-commerce with regard to the principles of technological neutrality and functional equivalence New-York, 14-16 February 2011 Hervé Jacquemin University of Namur - Research Centre on IT and Law (CRID) Audiovisual Superior Council

2. Introduction • Increasing use of mobile devices to conclude contracts (and/or to make payments) • Mobile devices? • SMS, MMS, internet • Legal framework dedicated to electronic communications and e-commerce • UNCITRAL Model Laws and Conventions • European directives (implemented into national laws) • Etc. • Challenge : Is it sufficient to address specific legal issues of m-commerce?

3. Agenda • Is it necessary to adopt additional rules to regulate m-commerce (with reference to its features)? Cf. Principle of technological neutrality • Overview of complementary rules or principles that could be enacted Cf. Principle of functional equivalence

4. I. Need of additional rules to regulate m-commerce? • Principle of technological neutrality • UNCITRAL Electronic Communication Convention, pt 47: “The principle of technological neutrality means that the Electronic Communications Convention is intended to provide for the coverage of all factual situations where information is generated, stored or transmitted in the form of electronic communications, irrespective of the technology or the medium used. For that purpose, the rules of the Convention are “neutral” rules; that is, they do not depend on or presuppose the use of particular types of technology and could be applied to communication and storage of all types of information” • Various rules dedicated to traditional ecommerce shall apply to m-commerce without any problem

5. I. Need of additional rules to regulate m-commerce? • Distinct features of m-commerce: • Technical limits (space ; identification ; e-archiving and digital evidence ; formal requirements ; etc.) • Specific protection required with respect to the use of a mobile device? • Role played by the operators (acting as intermediaries in case of m-payment, for instance)

6. I. Need of additional rules to regulate m-commerce? • Additional rules could be justified But they should remain exceptional : • Convergence between e-commerce and m-commerce (differences should not be exaggerated); • principle of proportionality ; • simplicity of legal framework

7. II. Overview of complementary rules or principles • Only few rules are currently dedicated to m-commerce within European Law • Ex. : “If the contract is concluded through a medium which allows limited space or time to display the information, the trader shall provide at leastthe information regarding the main characteristics of the product and the total price referred to in Articles 5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract. The other information referred to in Articles 5 and 7 shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1” (Art. 11 (3) of the proposal for a directive on consumer rights) • // contract concluded by telephone call • Satisfactory?

8. II. Overview of complementary rules or principles • Principle of functional equivalence • “The functional equivalent approach is based on an analysis of the purposes and functions of the traditional paper-based requirement with a view to determining how those purposes or functions could be fulfilled through electronic-commerce techniques” (UNCITRAL Electronic Communication Convention, pt 51). • Why should we limit its application to formal requirements? • Extent to other protection rules (information duties, conservation measures, etc.) if there is an obstacle to their fulfillment through m-commerce techniques • If purposes or functions of the rules have been fulfilled, contract parties can consider that these measures have been observed.

9. II. Overview of complementary rules or principles • Example : Information duties before the conclusion of the contract • Purpose : ensure an informed consent (< contract concluded at a distance) • Equivalent mechanism : • a priori • information already provided / not necessary • underline most important information • a posteriori (right of withdrawal?)

10. II. Overview of complementary rules or principles • Example : Information duties after the conclusion of the contract (and conservation duties) • Purpose : provision of the data needed during the performance of the contract ; in case of dispute, evidentiary objective • Equivalent mechanism : • Data provided immediately on an other medium (that will be available later) • Trusted third parties (e-archiving)

11. Conclusion • Need of legal certainty • Solutions can be found with regard to principles of technological neutrality and functional equivalence • To improve constantly, taking into account technical and sociological evolution

12. Thank you for your attention! Questions? herve.jacquemin@fundp.ac.be