The success of Ireland Inc as an Information Age Economy requires our law makers to encourage investment by providing a clear but light regulatory framework. There have been some highlights, and in this regard the Electronic Commerce Bill 2000 has been much hyped in recent weeks.

The Bill, examined in the cold light of day, is in fact a rather modest piece of legislation.

The Minister for Public Enterprise, Ms O'Rourke, recognised this when she spoke in the Seanad. She introduced it as a Bill "intended simply to remove existing legal impediments and uncertainties regarding the development of e-commerce in Ireland. It will allow consumers and businesses alike to be free to use electronic communications to satisfy existing legal requirements which already apply to paper-based commerce".

Nevertheless, even the Minister could not avoid branding the Bill as "landmark" legislation, a Bill which is "about positioning Ireland as a progressive, pioneering e-commerce regulatory environment". Even the title of the Bill gives the legislation an inflated sense of importance. More seriously perhaps, the title of the Bill is quite frankly misleading. The core values in the Bill are really linked to the law of evidence and the way in which e-business and e-government will be carried out. It is important to address structural, procedural and evidentiary matters but we should not lose the run of ourselves.

The Bill is also flawed because, in some senses, it tries to do too much, too soon. The Bill is intended to give effect to an EU Directive on Electronic Signatures and deal with electronic contracts and the legal status of electronic messages. It is not intended to give effect to the Electronic Commerce Directive, passed on May 4th this year. Yet the current Irish Bill strays into some of the contractual and regulatory issues that, on reflection, should be part of a more coherent and integrated analysis of electronic contracts law.

Some will argue that the Oireachtas is right to legislate speedily to obtain some kind of "first-mover" advantage, and there is force in this view. However, there are two responses to this argument. Firstly, there is no merit in passing laws that may be flawed. Secondly, to suggest that all Irish legislative procedures are honed to allow e-commerce legislation to be fast tracked with a view to giving Ireland Inc a regulatory edge is risible.

I shall develop both these points below. At the outset, however, I wish to welcome the Bill and stress that it should herald a new sense of urgency and commitment by our law makers to regulatory innovation in e-commerce matters.

The transposition of the Electronic Signatures Directive is achieved by the Bill. In essence, advanced electronic signatures, which are unique identifiers, or electronic signatures (which can consist of passwords or algorithms which are not unique) are given legal recognition in this Bill. The process of providing electronic signature services is regulated under a system of voluntary accreditation.

The control of certification service providers will vest in the National Accreditation Board. However, the operation of the voluntary scheme will have to await further legislation in the form of ministerial orders. The Bill provides that encrypted data will remain confidential - section 27 provides that nothing in the Act compels disclosure of data or private cryptographic keys that renders an electronic communication intelligible. The Republic does not share the same obsession with intelligence gathering as Britain, and the Bill sets the right tone. The Bill gives effect to the Electronic Signatures Directive by making it clear that data authenticated with an electronic signature enjoys the benefit of presumptions about authenticity and makes it possible for individuals to determine when electronically signed data will be acceptable.

The Bill seeks to give effect to basic rules about the admissibility of electronic texts and other "signature" methodologies that may find their way into some electronic text such as a pin or password. This kind of provision was inspired by the May 4th Electronic Commerce Directive and the United Nations Commission on International Trade Law on Electronic Commerce.

The central provision in section 9 of the Bill is based on the UN model when it says: "Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form". Ms O'Rourke summed this up as: "technology neutrality". Information in electronic form should not be denied effect solely because that form is adopted. This rule has to be welcomed into the commercial law of Ireland. The same is true of the electronic writing provision in section 12 and electronic original provision in section 16. Another feature of the Bill that has been welcomed is how the Civil Service managed the Bill's drafting and implementation. A process of consultation, brainstorming and drafting with interested parties took place during 1999 and outside legal expertise assisted in getting this legislation into the Oireachtas in record time.

The sense of urgency and commitment of those civil servants who pushed this technical legislation through such a complex process was universally admired and it is certainly the kind of "fast-track" model that the Republic needs if "first-moves" advantage is to be attained.

The Republic's achievement of having framework legislation in place a year before the EU deadline for transposition of the Electronic Signatures Directive is a coup that has to be built on.

THERE are some points that could be made about how the Bill interacts with existing legal rules. Two issues under the heading of consumer protection come to mind. The use of electronic communications to form and evidence a real property transaction under the Statute of Frauds is facilitated by the Bill.

This appears to be regulated under section 18. Because offers, acceptances and related communications (e.g. a memorandum) can be created electronically, it may be that e-mail messages between solicitors for example could unwittingly create a memorandum and therefore a legally binding contract of sale in circumstances where this might not have been intended. This danger is exacerbated by the fact that the communication in section 18 is operative "unless otherwise agreed by the parties". So every e-mail will have to be prefaced by a "contract denied".

A second difficulty is in relation to the fact that the Consumer Credit Act, 1995, appears governed by the legislation. Whether consumer contract and consumer notice provisions can be dealt with online, without the need for a hard copy to be provided, will await judicial decisions. The answers will also depend on what section governs the question: sections 12(2)(c) and 18(l) will produce different results.

I do not think this is at all satisfactory and an amendment to section 11 of the Bill to include the Consumer Credit Act, 1995 would be welcome. A reference to the Unfair Contract Terms Regulations, 1995 would be welcome, given the last sentence of Article 6 of the Directive.

EVEN more alarming however is the presumption in section 19. Note that the presumption applies to all electronic communications - a definition so broad that it includes virtually everything but voice telephony. While the section is said in the marginal note to be about "Attribution of Electronic Communications" it goes further than this. It fails to distinguish between the source of an electronic communication and the content of the communication.

One would think that attribution would be about source only - who sent the message. But the section itself refers to the contents of the message. Does this mean that both the message and the identity of the purported sender get a presumption of validity "unless the electronic communication indicates otherwise or the contrary is proved"?

If this extended meaning is placed upon the section it could prove to be a crooks charter. Clearer drafting could remove this uncertainty. Even if the narrower meaning is placed on the section there is still the difficulty of reconciling the section with the idea of "technological neutrality". An electronic communication attracts strong presumptions of validity not applicable to paper-based messages.

WHILE Part III of the Bill, the Certification of Service Providers Provisions, must await statutory rules to flesh these provisions out, some greater detail on what the law will provide for, would have been welcome. The debates in the Seanad give little away on who will be likely to qualify for service-provider status - banks, universities, software companies? The same is true of the details about root authority issue. The information that is available is culled from the Electronic Signatures Directive.

The Bill is somewhat unreal in relation to the rules governing the time and place of an electronic communication and legal effects thereof. Sections 20 and 21 will have to be reconciled with some of the formation of contract rules in the May 4th Electronic Commerce Directive so, even at this stage, sections 20 and 21 should be amended to take account of Article 11 of the Electronic Commerce Directive.

The ugly aspect of the Bill stems from how it adds another fragment to an already piecemeal commercial law mosaic.

THE Electronic Commerce Bill 2000 is really only a beginning. The Electronic Commerce Directive of May 4th, 2000, is a much more ambitious and comprehensive text, dealing as it does with issues of jurisdiction, ISP liability, contract formation online, and spam (junk email) to name just four topics.

This directive has to be subjected to the same kind of consultative process with a focused and co-ordinated process of consultation with interest groups. The legislation should seek to resolve other civil law issues such as Third party Rights - Britain passed legislation last year that provides a model - and the Distance Contracts Directive.

If Ireland Inc. could act as speedily on the Electronic Commerce Directive that really would be an e-commerce contracts platform the envy of the world. However, I am a little pessimistic about this coming about. We have not been legislatively proactive in e-commerce matters.

Take the critical matter of privacy protection. Two important Data Protection Directives remain on the long finger 18 months after the transposition deadline has passed. We have not even seen the draft legislation. The Distance Contracts Directive deadline is about to elapse. These are critical e-commerce issues. In the area of information and entertainment products a similar picture is presented by our legislators.

When it eventually gets through, the Copyright and Related Rights Bill will give Ireland a state-of-the-art copyright regime, but the Bill was published on April Fools Day last year!

The Broadcasting Bill is also becalmed and vital legislation on imposing competition at local-loop level is in the same legislative taxi rank. Other examples of legislative inaction impeding e-competitiveness - licensing of banks for e-commerce for instance - abound.

There are some signs of new thinking about how to move things on. In relation to the Broadcasting Bill 1999, a "facilitator" has been appointed to move things ahead somewhat. This is to be welcomed; old vested interests should not be allowed to impede progress towards the creation of a legal framework for the new economy.

The Taoiseach has personally been very active in promoting information society initiatives and my final observation requires action by him in order to muck out the Augean Stables and provide a light but clear regulatory framework for e-commerce.

An e-commerce supremo and an e-commerce select committee should operate throughout the summer to advance work on all e-commerce related texts.

Special budgets should be agreed and civil servants, outside consultants and industrial sectors should be seconding personnel to bring this process forward with a view to a consolidated e-commerce code being available this autumn. Nothing else will meet the needs of Irish e-business. The Electronic Commerce Bill 2000 should mark a new beginning in all senses.

Robert Clark is Associate Professor of Law, University College Dublin