For the first time in Mozambique, the Electronic Transactions Law has been approved through Law no. 3/2017 of 9 January 2017 (ETL or Law). The Law regulates electronic transactions in general and, in particular, electronic commerce and electronic government.
For a better understanding of the scope of the Law, the definition of the terms indicated above should be noted, namely: (i) Electronic Transaction: any communication or activity between two parties carried out by electronic means; (ii) Electronic Commerce: economic activity in which a person offers or guarantees the provision of goods and/or services by electronic means; and (iii) Electronic Government: use of the internet by the Government to provide information and services to citizens.
The main objectives of this Law are to guarantee security of providers and users of information and communication technologies, as well as to establish the specific sanctioning regime for cybercrime in order to ensure consumer protection.
Taking into account that the Law is extensive and raises several issues that require further analysis, the purpose of this article is only to bring to light some of the main aspects addressed in the ETL. In later editions, we will have the opportunity to direct our analysis to specific topics covered by the Law.
In this context, let us consider below some issues raised by the ETL:
- "mz" domain: The "mz" domain is the internet space that is assigned and managed by the National Institute of Information and Communication Technologies (NIICT). Any individual or legal person residing in Mozambique may request the registration of a name with the ".mz" domain from the NIICT, and they are free to choose the terms to adopt, unless such terms have previously been reserved by another person or entity.
The ETL establishes that fraudulent use of the domain name or a similar domain that is likely to create confusion or misunderstanding to third parties, with the intention of benefitting from it or benefitting third parties, will be classified as a violation under the Mozambique Industrial Property Code (Approved by Decree 47/2015 of 31 December), the Copyright Law (approved by Law 4/2001, of 27 February) and other applicable legislation.
- Intermediary service provider: An intermediary service provider is considered to be any person who, on behalf of another person, sends, receives or stores data messages. They provide network access service or provide services from it (access providers, content providers, application providers and hosting providers).
The provider is subject to the obligation of secrecy and confidentiality of all information communications transmitted by users linked to them, and cannot disclose, provide or use them at the expense of the users. The provider is not obliged to monitor the information it transmits or stores, nor to look for facts or circumstances that are indicative of illegal activity, without prejudice to the obligation to cooperate with the authorities if it detects such illegality.
- Data and electronic communications messages: With regard to the legal knowledge of the information contained in data messages or any information in electronic form, it should be noted that it has the same legal effect as information in a physical form, provided that it complies with the legal requirements and formalities established for the presentation of documents in physical form. All information presented in the form of a data or electronic message has probative value and may be used as evidence in court, thus, it may not be rejected for the sole reason that it is an electronic communication or for not being presented in its original form and, in the cases in which such messages are the best evidence that can be expected from the person who presents them.
- Effectiveness of Contracts: For the valid and effective conclusion of a contract, the offer and its acceptance may be expressed by electronic message, unless otherwise stipulated by the parties or if the law requires an electronic signature of the parties or notarization or other formality for the validity and effectiveness of the contract.
Where the contract does not involve consumers or services are delivered electronically and immediately, the recipient shall acknowledge receipt of the data messages within a period to be stipulated by the parties. If there is no express deadline, the author can notify the recipient accordingly and establish a specific period to that effect.
It should be noted that the acceptance of electronic information does not exempt the parties from disclosing their identity, physical and/or electronic address or other information, as well as the liability and legal consequences arising from providing inaccurate, incomplete or false statements.
- Electronic Commerce: As regards to electronic commerce contracts, the law requires the parties to act in accordance with the rules of good faith, either in the preparatory acts or in the conclusion of the contract under penalty of liability for damages culpably caused to the other party.
If the parties do not establish such a provision, the seller must deliver the goods or provide the contracted service within 30 days of the day following the expression of interest, otherwise the buyer may terminate the contract through a written notice, with seven days’ notice, by means of reimbursement of the payment for the contract within 30 days of the abovementioned notification.
This legislation raises specific aspects of Electronic Commerce when Transport of Goods Contracts and Electronic Advertising and Marketing Contracts are concluded.
With respect to the electronic payment instrument, the law establishes that the Bank of Mozambique must create rules that establish security guarantees for all payments made by any other carrier that uses an electronic payment instrument.
- Consumer protection: In the field of electronic commerce, contracts concluded between commercial companies and consumers must provide sufficient, accurate, clear and easily accessible information in order to identify the contracting parties as well as the goods and services offered to the client, terms, conditions and costs associated with the transaction, in order to maintain proper registration of the information.
The consumer has the right to cancel the transaction, without reason, within 14 working days after the receipt of goods or services if the contract is not concluded in accordance with the law in question. The consumer is obliged to return the goods provided or terminate the use of the services provided and the commercial entrepreneur must reimburse all payments made by the consumer, with the exception of the value relating to the direct costs of return of the goods.
- Electronic Government: Within this scope, it is the responsibility of the Council of Ministers to define the strategic policies and the coordination of the implementation of Electronic Government, as well as to appoint the competent authority to provide Electronic Government services.
The customer care and services provision processes, provided electronically in the Public Administration, including via the internet, have the same validity as the processes handled manually.
Information to the public on government and public administration activities and services at all levels that can be provided via the internet should be made available through the Government Portal at all levels, as well as through other Government and Public Administration portals and websites.
- ETL also includes aspects related to the digital certification and encryption system, as well as the protection of personal electronic data
- Contraventions and Sanctions: In terms of contraventions, ETL lists several, among which we highlight the following:
- Illegal access to a computer system or network
- Illegal interception of private data transmissions
- Damage, deletion, deterioration, improper and intentional alteration or destruction of data
- Intentional interference affecting the operation of a computer system or network
- Breach of safety of the electronic payment instrument
The above and other contraventions provided for in this law are punishable with fines varying from 30 to 160 minimum public sector wages, which at present corresponds to 98,340 MT and 524,480 MT respectively, without prejudice to the application of a more serious penalty under criminal legislation.
In general, from the analysis made, we can deduce that this Law, although containing some controversial aspects (for example, the provisions of article 64 of the ETL regarding the possibility of non-judicial access to data), has numerous advantages for users of information and communication technologies. Those advantages include protection against cybercrime and legal recognition of acts carried out using computer platforms.
This Law was approved at a time of rapid transformation and technological development in the area of information and communication technologies and the introduction of new and diversified electronic devices and data communication services. All of these developments have influenced the most diverse social and economic areas and consequently, have resulted in an increase in cybercrime in the country.
In this way, it will be possible to punish those who use information technology for illegal acts and the Administration of Justice authorities will be in a position to act and punish cybercrimes, thus ensuring the protection of the consumer and increasing the confidence of Mozambicans in the sending of electronic messages as a means of communication and service provision.
In the case of a recently adopted law and matters not previously regulated, we believe that it is important for the competent authorities, in particular the NIICT, to initiate a program of dissemination of the Law, both between the private sector and the public sector at national level, in order to ensure its proper and correct application.
SAL & Caldeira Advogados LDA is a member of the DLA Piper Africa Group, an alliance of leading independent law firms working together in association with DLA Piper across Africa.
Originally published in the SAL & Caldeira Newsletter 2017, No 27, May 2017 and is reproduced with permission.