Government says passing of the Electronic Transaction Bill into law by the National Assembly on Monday, will open up the E-Commerce businesses in the country and protect people from various forms of harassment on internet.
Malawi National Assembly on Monday evening passed the bill with new title “Electronic Transactions and Cyber Security Act 2015.”
The bill seeks to enable to people to transact various services electronically with full protection of the law and also ensure that people are protected from computer related harassments like viruses, hacks and all cyber crimes.
Clause 49 of the bill contains details of how consumer and suppliers or parties entering into a distance contract will resolve their problems like when a consumer exercise right to withdraw from the contract and its penalty, or where a supplier fails to reimburse to consumer the sums due within the agreed period.
On Default of Contracts Performance the bill indicates that “where the supplier fails to refund the consumer, interest shall accrue on the sum at the prevailing base bank rate as specified by the reserve Bank of Malawi”
Part 6 of the bill contains details of offences which Clause 87 specifies “if one knowingly introduces or spreads a software code that damages computer, computer system or network.
Under subsection 6 of the clause says “any person who utilizes any device or computer program…”, “in order to unlawfully overcome security measures designed to protect such data or access thereto, commits an offence and shall upon conviction be liable to a fine of K2 million and to imprisonment for five years.”
Another penalty is cited in Clause 92 “Any person who hacks into computer system, or knowingly introduces or spreads virus into a computer system or network, commits an offence and shall upon conviction, be liable to a fine of K5 million, and to imprisonment for seven years”
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| Kaliati |
Minister of Information and Civic Education, Patricia Kaliati said the passing of the bill will open E-Commerce industry in the country as well protect both consumers and supplier from all e-commerce related contractual problems.
But commenting on the protection of Malawians from the cyber crimes Kaliati explained that the bill is addressing issues of protecting personal and private information from being hacked either direct from someone’s computer or on internet; online publishing of fake information; establishment of fake social media accounts with intent to spew insults to a person even distribution of fake images portraying a person in a wrong way.
“Those people will be punished because police will be able to contact the internet service providers to crackdown those people. The honeymoon is over for those people because the systems have been used by many Malawians to hack people’s computers and social media accounts even publishing edited nude pictures of someone else just to tarnish their reputation.” Indicated Kaliati
“We have also been challenged with child pornography, where children were exposed to things that they were not supposed to be exposed to, now this is going to be dealt with as there will be a child pornography filtering software that will be used to block that content and children will never be able to access to that service.” She said
As cited by the Minister the new law defines the Child Pornography as “Visual and audio material that depicts, represents or presents a person below the age of eighteen engaged in a sexually explicit conduct or image representing a person appearing to be below the age of eighteen in sexually explicit conduct.” While Pornography has been defined as “Visual and audio material that depicts images of a person engaged in sexually suggestive or explicit conduct.”
Other definitions in the bill include; cryptography, Country Code Top Level Domain (ccLTD), data, Domain Name, repository, subscriber and supplier.
The bill passed with several amendments made by Parliamentary Committee on Media, Information and Communications Committee.
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| Kawale |
According to Chairperson for the Committee, Samuel Kawale, who presented the amendments said the majority of the amendments were definitions to make sure that interpretations of terminologies are easily understood by everyone.
“We also tried to widen the scope in terms of application of the bill because we are talking about the electronic transactions, the biggest goal for us to protect the consumer because almost all the time the consumer is always on the losing side.
So, what we are trying to make sure is that any person who is involved in any electronic transactions is protected because we always fall prey to the so called predators either in unnecessary viruses or unnecessary advertisements or anything that is going to damage us in any other way.” Explained Kawale
With the passing of this bill, there will be a Registrar whose functions will be designated by the Authority to manage and maintain the reservation of domain names and domain registry.
The Electronic Transactions and Cyber Security Act 2015 shall come into operation on such a date as the Minister may appoint by notice published in the Gazette.
Amendments To The Bill
The long title of the bill has changed from Bill No. 11 of 2015: Electronic Transaction Bill to “An Act to make provision for electronic transactions; for the establishment and functions of the Malawi Computer Emergency Response Team; to make provisions for the criminalizing offences related to computer systems and Information Communication Technologies, to provide for investigation, collection, and use of electronic evidence and for matters connected therewith and incidental thereto.
Definitions
Content provider in the bill has been defined as “any person or organization who supplies information for use on website or on any electronic media platform.”
Digital Certificate means an electronic document used to provide ownership of public key. The certificate includes information about the key, information about its owners identity, and the digial signature of an entity that has verified the certificate’s contents are correct.
Private key, is defined as “Key of the pair in an asymmetric crypto system used to verify a digital signature that the holder of a digital signature makes available to the public or intended recipients”
Further Amendments
There has been deletion of Establishment of Post of Secretary for E-Gvernment, Establishment of Department of E-Government. However the bill will lead to Establishment of Malawi CERT.
Part 5 of the Bill, Electronic Commerce has clause 38 which provides more details on the Formation of electronic contracts with consumers. It provides that “Every contract with value exceeding K5 million or value as will be prescribed by the Minister through notice in the gazette, concluded by the electronic means shall be archived by the supplier for a period of not less than seven years from the date when the contract was formed.”
On Default of Contracts Performance the bill indicates that where the supplier fails to refund the consumer, interest shall accrue on the sum at the prevailing base bank rate as specified by the reserve Bank of Malawi.
Clause 47 which earlier read "scope of application of financial provisions" has been replaced with “The Minister in liaison with Reserve Bank of Malawi and in consultation with the Authority shall make regulations defining specific obligations with regards to online banking”
Clause 39 has details on Cooling-Off Period
The clause's Section (1)(a) says “With respect to goods, within seven days of the receipt of the goods or period as agreed by the two parties in the agreement.” (b) With respect to services, within seven days or a period as agreed by the two parties in the agreement” and (39)-(4) “After expiry of the period specified in subsection (3) the sum due shall attract the interest at the prevailing base bank rate as specified by the Reserve Bank of Malawi”
Clause 49 of the bill contains details of withdrawal from contract electronic transactions contract
Clause 49 (1) says a consumer entering into a distance contract for the provision of financial services shall have twenty calendar days, or period as agreed by the two parties in the agreement, within which he may exercise his right to withdraw from the contract without penalty and without giving reasons.
But same clause (5) says Where a consumer exercises the right of withdrawal, he may only be required to pay, within seven days, or period as agreed by the two parties in the agreement, for the financial services already provided by the supplier pursuant to the distance contract and the execution of contract may only start upon consent of the consumer, and amount due”
In (8) “A supplier shall be required to reimburse to a consumer, not a later than fourteen days or as agreed by the two parties in the agreement, all sums which were paid by the consumer under a distant contract.” And (9) says the period shall commence once a supplier receives a notification of a decision by the consumer to withdraw from the contract.
Then (10) “Where a supplier fails to reimburse to consumer the sums due within the agreed period, the amount shall attract interest at the prevailing base banking rates as specified by the Reserve Bank of Malawi”
Also (11) “A consumer shall return to the supplier not later than the agreed period, any goods received from the supplier and the fourteen day period shall start from the day when the consumer has sent a notification of withdrawal to the supplier.”
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