CYBER LAWS WORKSHOP FOR
EAC, 24-28 April 2006, Kampala.
The Status of Cyber Laws in
Tanzania.
Presenter; ADAM MAMBI
State Attorney (Head legal Research
Dpt.), The Law Reform Commission of
Tanzania.
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Emerging issues that EAC need will to
consider for the establishment and
implementation Legal frame
framework for ICT and E-Government
• The impact of ICT on the Laws, economy and the
Society.
• E-Commerce/E-government
• Barriers to the commercial exploitation of ICT (e.g.Commerce)
• Cyber Crimes. Definition of Theft under digital era?
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• E-evidence, e-signatures/Evidential Status of
electronic documents.
• Jurisdiction problem on cyber space
• Extradition treaties on cyber space
• Are we E-EAC or off-line-EAC?
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E-Commerce and the Status
of Cyber Laws in Tanzania
• The technology has brought
fundamental changes in the way
commerce takes place The impact on
the use (EDI)
• E-commerce is growing explosively
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The Current Legal
system in Tanzania
• Transactions that are paper based
methods.
• The e-transactions hindered by legal
obstacles( written documents manuscript
signatures, authentication in transactions).
• Contracts to be made by deed in writing
and evidenced using original documents
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• laws designed to facilitate paper-based
transactions.
• Lack of Regulatory steps to secure etransactions such as digital signatures, egovernment
• Lack of e-dispute settlement mechanisms
• Should we apply 1800s Postal Rules on ecommunications? [Adams v. Lindsale] 1818
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Exceptions to written, and
signature requirements
• Contracts for licensing and
assignments f copyright, creation of
transfer in title deeds , Wills and
trusts , negotiable instruments, and
Bill of lading.
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Some e-Laws recognizing
exceptions
•
•
•
•
The UK CDPA 1988
The Law of Property Act 1989
Marine Insurance Act 1906
Consumer Credit Act 1974
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Jurisdictional Problem on
Dispute settlement!
• Under cyber space with boundary less where
things happen?
• When and where the contract is actually made?
• When communication of offer/acceptance is
deemed to be effective forming a contract?
• Are we able to point out the time and the place
where the contract is made electronically?
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• Do we still need to apply Postal rule?
• Which legal system will apply?
• Which court will have jurisdiction?
• Who are relevant law enforcers in cyber crimes?
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ADR vs ODR
 Laws govern ADR of-line {Arbitration Act, Civil Procedure Act)
1967)
 Online Dispute Resolution (ODR) for cyberspace/Internet disputes
and offline disputes is growing through Website Mediation and
negotiation services (cyber mediation & negotiation).
 Using Sophiscated Software and a Neutral Third Party
 See http:/www.cybersettle.com, www.settlementonline.com and
www.clicknsettle.com
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• How can we incorporate ODR /e-ADR in our egovernment strategies and Laws?
• Do we have laws that recognize e-justice and
cyber courts?
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Off-line Auctions vis-àvis On-line auctions
• Sale by auction is complete when the
auctioneer announces its completion
by the fall of the hammer
• With on-line-auction it is the time
that matters.
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Digital/Electronic
Signatures:
•
E-Commerce has brought a revolution on a paper
based signatures to digital or e-Signatures
• E-Signature means Data in electronic form in,
affixed to or logically associated with, a data
message.
• Laws in Tanzania do not recognize e-signatures
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• Identity and identification on the Internet
• Capacity to contracts (Minors not allowed)
• “On the Internet no body knows you are a dog"
(Reed, Interne Law page 119):
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• Business Laws-contracts to be made
or evidenced in a particular way
namely:
• By deed, under seal and writing.
• be signed before a witness.
• Be evidenced with original documents
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• Retention of information in a manual
filling system.
• Keeping written documents
• Barrier in implementing e-government
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Suggested Solutions
• Enact/amend our laws in line with
UNCITRAL and CMW Model Laws
requirements for functional equivalence.
• Articles 6UNCM/7(CWL) (writing),
7UNCM/9(CWL) (Signature),
8UNCM/6CWL(Original),9UNCM/3(CWL)(
Admissibility and evidential weight of data
message/e-evidence) and 11 of UNCITRAL
Model Law on E-Commerce 1996-1998
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• Article 6UNCM/9CWL(e-/digital
Signature) and 12 of UNCITRAL Model
Law on E-Signatures
• While other countries legislation which
reflect UNCITRAL Model Laws some
countries like Tanzania, Kenya and
Tanzania have still off-line laws.
• Where are we?
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Consumer protection Under distance
Contracts and e-banking;
• There is a practical danger to
consumers who buy goods or services
on-line.
• Most Laws protect consumers on offline business only.
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E-PAYMENTS/EBanking
• E-Banking.
• Most Banks and other financial
institutions have introduced ATMs
Cards and other related Cards.
Most laws regulating this area are
not in tune to e-banking, calling for
further reforms.
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• Is the use of credit/debit cards is safe, risk
less?
• Negotiable instruments
• Are the definitions of bill of exchange and
cheques affected by e-banking?
Definition of Bills of Exchange
• “An unconditional order in writing, addressed by
one person to another, signed by the person giving
it….
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• An endorsement in order to be a
negotiation must comply with the following
conditions, namely• (a) it must be written on the bill itself and
be signed by the indorser
• and the simple signature of the indorser
on the bill, without additional words, is
sufficient.
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Taxation under ecommerce
• Impact of e-commerce on Taxation system
• Tax principles of source, residence and
jurisdiction affected by e-commerce.
• Under digital technology digitized goods
can be delivered electronically which pose
a challenge on taxation system.
 How can we assist Tax collectors?
 Where and where taxes can be collected?
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Issues to be considered
under e-taxation!!!!
 Where a business is to be regarded as established for
fiscal purposes?
 Where income is earned in one country by an individual
resident or undertaking established in another country
where taxes fall due to be paid.
 How can we avoid double taxation and prevent fiscal
tax evasion?
 How can we reform our Tax laws to cope with edevelopments?
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International harmonization
on e-taxation
• OECD Model Tax Convention provides the
basis for more than 1,500 bilateral
treaties between states providing for tax
arrangements regarding each other’s
nation.
• Are we part of this Convention?
• How far is it useful?
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THINK ABOUT THESE!
• E-commerce unleashed and unbowed? (Turban E.,
Ecommerce 2002)
• What are the impact of internet on the way we
live, work and think?
• The future has just happened!!!
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Data Protection and
Privacy
• Are we assured with security under our computer
systems?
• Do we have any legal framework on database and data
protection?.
• Can the personal data and confidential information flow
freely.
 Balance between the right to privacy and public interest
 Can the data processing techniques pose threat to the
rights and freedoms of individuals.
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Intellectual Property Rights
and Digital Technology
• Digital infringement of IP rights such
as Copyright and domain names
cybersquating
• Impact of ICT on IP Laws.
• E-Publishing and digital infringement
of IP Rights. Software and web
piracy
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(ISPs &OSPs) liability on
digitised services.
• The relevance of IP the New Media/ICT.
• Off-line IP Laws
• The Role of ISP on digital infringement of
IPRs.
• ISPs and other on-line service providers
can be secondarily held liable as
facilitators for the infringement of
copyrighted materials online.
•
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MP3—Peer 2 Peer File
Sharing.
• MP3 music files under ecommerce has great impact
on Copyrighted work.
• MP3 is a file that stores
compressed music file.
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• Do current Copyright reflect digital infringement of copyrighted
works?.
• Are there digital infringement theories developed under
NAPSTER Case?.
Consider the US Digital Millennium Copyright Act.
• CDPA(UK) 1988
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Internet Domain names
• Domain names are Web or Internet
addresses used by web servers to identify
each other on the Internet. ICANN
responsible for administering Internet
Domain names.
• Are we ruled or bound by California Laws?
• Do we have laws to regulate this area
(cybersquating)?
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Other jurisdictions
• The US has enacted the US Anti-cybersquating
Consumer Protection Act (ACPA) for regulating
Domain names. .
• Example of domain names disputes case of Prince
Pl v. Prince Sportswear Group Inc[1998].
• The UK had also experienced the conflict on
domain names in Pitman Training Ltd v.Nominet UK
[1997)and Mark & Spenser plc v.One in a Million
Ltd[1998] Dispute on multiple trademark holders
Nissan Motor Co.v. Nissan Computer Corp.
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Impact of ICT on Criminal Law;
Cyber or Computer crime
• Computers technology has impacted
criminal law in two main
ways.
 It can facilitate the commission of crimes such as fraud
and theft
 created new range of activities/offences such as computer
hacking and the development and distribution of computer
viruses, unsolicited emails and hacking.
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Hacking unauthorized access to computer
material
.Threat by Hackers
• serious threat to the security of computer
systems
• read or copy confidential information,
• erase or modify information or programs
• download programs or data, or add something,
• Steal money or direct the computer to have goods
sent to him.
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See Re v. Levin [1997] QB 65.The
applicant in St Petersburg to access to
Citibank's computer system in New
Jersey and transferred money. He was
arrested in the UK and US sought
extradition.
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Computer Viruses and time
bomb;
• Creation or dissemination of computer
viruses. Misconduct in computer field
• A virus will typically be transferred from
one system to another through either
disks or storage devices.
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Fraud and theft under digital
technology
• Stealing money or property by means of a
computer
• Using a computer to obtain dishonestly, including
money and cheques or credit or services or to
evade dishonestly some debt or liability.
• Obtaining property e.g. money by deception;
 Definition of Theft under the current Laws (permanently
depriving some ones tangible property) .Does this cover theft
using computers? e.g. intangible property rights?
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Spamming
• This unsolicited emails on the Internet
normally sent by e-bussines trying to
advertise and sell goods and services. This
can block ISPs Services.
• A trespass to other IPRs. eg. trade marks
and Domain names.
• In the US There has been more than 20
cases.
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Computer Pornography:
• Recording and transmission of images and texts
on digital media different from paper or video
tapes.
• Digitization, transmission, upload and download
obscene sexual images and fantasies over the
Internet.
• Children are more vulnerable on the impact of
these obscene materials.
• Current Laws not effective in combating these
crimes
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• Consider the following issues
• How can we control/regulate on-line transmission
of obscene, indecent material and defamatory
information?
• Who are the “new actors in the new Stage”?.
• Opt to intermediary liability?
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• Most laws do not accommodate
cyber crimes.
• laws does not provide cyber crime
offences such as computer frauds,
theft, piracy and the prosecution
thereof.
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Reliability and admissibility
of Computer Evidence.
• Most Current Evidence statues are
derived from Common law using
“BEST EVIDENCE RULE”.
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 In Tanzania The Evidence Act, 1967 does not
provide room for the admissibility of
computer/electronic Evidence.
 The best evidence under this law is the primary
evidence which in most cases will be the written,
and signed or authenticated documents.
.
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The Role of the Judiciary in
Tanzania
 The lacuna on the admissibility of
electronic evidence was tested by
the High Court of Tanzania
(Commercial Division) in the case of
Trust Bank Ltd. v. Le-marsh
Enterprises Ltd., Joseph Mbui
Magari, Lawrence Macharia(No.4 of
2000 (Unreported)
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What do we learn from
this case
• Although the laws in Tanzania do not
recognize computer evidence as original,
the case has put paper based evidence and
e-evidence in equal footing weight.
• The Judge urged that in the absence of
e-laws (emphasis added) the court will find
way of dispensing justice even in difficult
circumstances of absence f legal guidance.
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 the question
before Judge
Nsekela was
whether
Computer/electron
ic Evidence is
admissible in our
Courts under our
Laws.
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Impact of Court
Decision:
• E-Evidence admissible under our
courts.
• Departure from strict application of
“BEST EVIDENCE RULE”
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Integrity of computers
and electronic records
system.
• How can one proof the integrity of
computers computer generated
information and computer print-out.
• Can “the best rule” apply in electronic
evidence?
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Jurisdiction problem
• Which legal system will apply when dealing with cyber crimes?
• Which court will have jurisdiction?
• The cyberspace has no boundaries. A crime can be
committed anywhere in the world. Which country has
the right to arrest offenders and prosecute?
• Do we need Extradition treaties for all countries in the
world?
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GOVERNMENTS INITIATIVES THE LAW
REFORM COMMISSION OF TANZANIA
Response on the impact of ICT
• LRCT has undertaken a review and
research on the e-commerce and
Cyber crimes area and come up with
the recommendation which will lead
to the enactment of the laws that
will regulate this fast growing area.
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Proposed Draft Bills by The
Law Reform Commission of
Tanzania
Four Proposed Draft Bills based on
Functional equivalence were prepared from
the final Report on E-Commerce and Cyber
and Computer related crimes.
The Final Report plus the proposed Draft
Bills to be submitted to the Minister of
Justice and Constitutional Affairs.
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1. ELECTRONIC EVIDENCE BILL
Cross cutting issues addressed;
– Recognition and admissibility of electronic
records as evidence equivalent with the “best
evidence rule”
– Giving due evidential weight information in a
form of data message.
– Admissibility of e-Signatures
– Burden of proving authenticity of e-records.
– Presumption of integrity of e-records
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ELECTRONIC TRANSACTION AND
COMMUNICATION BILL
Cross cutting issues addressed;
– Writing requirement met by eInformation/data message
– Handwritten signature satisfied by eSignature
– Production/retention of original
documents satisfied by e-documents
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– Recognition of e-contracts & ecommunications.
– Determination of time and place of
sending and receiving e-communications
– Recognition of foreign e-Documents / eSignatures
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– Notarisation, acknowledgement and
certification met by e-Signatures,
establishment of Authentication Authority on
e-signatures etc
– e-Government service delivery – acceptance of
electronic filing; application; payment; digital
signatures; e-publication / e-Gazette; etc.
– Administration of country-code Top Level
Domain
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•
•
•
•
Establishment of Authentication Authority
Accreditation Authority
Authentication Service providers
Establish register of Cryptography
providers
• Establishment of domain name authority
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CYBER AND COMPUTER RELATED
CRIMES BILL
Cross cutting issues addressed;
– Illegal access and interfering with computer
systems
– Use of illegal devices
– Interfering with data and computer system
– Publication of immoral & obscene materials (eg.
obscenity, inciting hatred, harmful to children,
etc.)
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– Production of computer viruses, worms,
logic bombs, etc.
– Powers of authorised officers to search
& seize computer systems/e-devices and
access data
– Powers of authorised officers to
prosecute cyber-crimes
– Cyber Inspectors and their powers
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DATA AND PRIVACY PROTECTION
BILL.
• Cross cutting issues addressed;
– Collection, use, disclosure and retention of
personal information
– Limits on the use and disclosure of personal
information
– Storage and security for personal information
– Retention and disposal of personal information
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– Principles of data protection and
consumer rights
– Powers of Minister to make regulations
– Establishment of the Office of Data
Protection and Privacy Commissioner
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General Exceptions on eprinciples.
• Contracts for licensing and
assignments f copyright, creation of
transfer in title deeds , Wills and
trusts created by wills, negotiable
instruments, and Bill of lading.
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Concluding Remarks
Having realized all cross cutting issues
which seem to be barriers for ecommerce and e-government
implementation, there is a need of
having harmonized and uniform Legal
framework on ICT within EAC.
Need for benchmarking from other
countries with legal framework on ICT
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Consideration of UNCITRAL Model Laws
and Commonwealth Model Laws on ECommerce and E-Signatures
Lets make our law enforcers to be eenforcers
Have e-courts
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The End
Thank you for you Attention!!
Adam Mambi,
State Attorney (Head Research Department),
The law Reform Commission of Tanzania:
Expert on Cyber Law/ICT Law, Intellectual
Property Law, Competition Law and
Environmental Law.
• Email: adammambi@yahoo.co.uk
• Mobile Phone: +255(0)741291302

•
•
•
•
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