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
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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?
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Agenda
I.
Is it necessary to adopt additional rules to regulate mcommerce (with reference to its features)?
Cf. Principle of technological neutrality
II.
Overview of complementary rules or principles that
could be enacted
Cf. Principle of functional equivalence
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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
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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)
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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
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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 least
the 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?
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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 mcommerce techniques
 If purposes or functions of the rules have been fulfilled, contract parties
can consider that these measures have been observed.
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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?)
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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)
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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
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Thank you for your attention!
Questions?
herve.jacquemin@fundp.ac.be
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