Preservation of Electronic Records - Legal Aspects of E-Commerce | E-Commerce - B Com PDF Download

Preservation of Electronic Records: According to section 7 of IT ACT 2000, there is a legal prerequisite of retaining documents, records or information shall be reserved for any specific period shall be deemed to have been fulfilled if such documents, records or information are retained in the electronic form, if:

• The information stored is accessible for a subsequent reference.
• It is retained in the originally generated, sent or received way or in a format which can be demonstrated to represent accurately the information originally generated, sent or received.
• Details enabling the identification of the origin, destination, date and time of despatch or receipt of such electronic record are accessible in the electronic record.

1. Attribution of electronic records (Section 11)

Originator is a person who sends, generates, stores any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but doesn’t include intermediary. The recipient of the electronic record is called the addressee.

Example: Avanindra sends an email to Rahul using his Gmail account.

Here, Avanindra is the originator and Gmail is the intermediary.

Suppose Avanindra cannot response to any email which he receives during his busy time. So to cope up with this situation, he has turned his busy time responder on, with the following message: “Thank you for your email. I am busy and will reply your mail as soon as possible”.

Here, Avanindra is the “originator” and he has programmed an information system to operate automatically on his behalf. 

2. Acknowledgment of receiving of electronic record (Section 12)

According to (Section. 2 (1) (b)) “Addressee” means a person who receives the electronic record which is sent by the originator but does not include any intermediary.

Example: Avanindra send an email to Rahul, using his Gmail account.

Here, originator is Avanindra, intermediary is Gmail & addressee is Rahul.

Suppose Rahul send an email to Mona that he wants to purchase a house. So he wants to know the prices and other essential things of the houses available for sale. Mona, the addressee in return sends Rahul a catalogue of prices of the houses available for sale.

So here Rahul is the originator and the action of Mona to send email with the catalogue of prices of the houses indicates that his email has been received by the Mona (addressee).

1) the originator has agreed with the addressee about the acknowledgment of receipt of electronic record may be given by:

a) by the addressee through any communication way, automated or otherwise, or

b) Any behaviour of the addressee which is sufficient to show to the originator that the electronic record has been received.

2) Where the originator has agreed that the electronic record shall be binding only on receiving of an acknowledgment (Section12(2)):

In this type of a case receipt of acknowledgement becomes compulsory to bind initiator (originator).

3) An originator can treat the electronic record as if it has never been sent after giving notice to the addressee, that no acknowledgment has been received by him within a specified time limit.

The Time and place of despatch and receipt of electronic records in India (Section13)

The legal issue relating to the formation of a contract in cyberspace is complex and there is significant level of ambiguities in the electronic world. In the physical world, the rules on the formation of contracts are clear. The main problem is encountered about the consideration of message when it is sent or received when it is transmitted through different electronic mechanism. In order to remove many of the difficulties and ambiguities the cyberspace laws about acknowledgement of receipt of data message and the time and place of dispatch and receipt of electronic records have been provided under the law.
In India, the law about time and place of dispatch and receipt of electronic records provides: 1 According to Section13 (1), a record is considered to be dispatched by the originator at the time when it enters a computer resource.

Example:

Mona composed an email message for Rahul. At exactly 2p.m. she pressed the “Send” option of compose box. The message will not be in Mona’s control after pressing send button. The time of dispatch of this message will be 2p.m.

2. According to Section13(2), the time of receipt of an electronic record shall be determined as follows,

a) if the addressee has designated a computer resource for the purpose of receiving electronic records -

i) the time of receipt of an electronic record occurs when the electronic record enters the designated computer resource, or

ii) If there is no existence of designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee.

b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.

3. Section 13(3) is about place of dispatch of electronic record. This section mentions that in absence of a contract to the contrary between the originator and addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business.

4. The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3). 

Example:
Rahul entered into contract with a Japan based company. Company had its server in US Even if the company had its mail server located physically in US; the place of receipt of the order would be the company’s office in Japan.

Place of business According to Section 13(5) of the IT Act, 2000,

• When the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business.
• If the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business.
• The "usual place of residence", in relation to a body corporate, means the place where it is registered.

Sec 13(5) mentions the place of business which is relevant in order to determine the time of dispatch and receipt of electronic record.