Iraq is witnessing a wide development in the means of communication after the development in technology that facilitated communications, exchange of information and the appearance of electronic documents, which are extracts of automatic computers, the Internet and modern means of communication such as fax and telex. Therefore, it became necessary to have laws and instructions covering this field as a result of the increase in usage day after day.
What is an Electronic Document?
It is an electronic mean used in the transactions and can be relied upon or resorted to for the purposes of proof, such as electronic messages, electronic records, electronic contracts, electronic cheques and others, where the modern technology facilitates the business that were previously impossible to accomplish manually. The technology has provided in the field of electronic communications the possibility to achieve human communication and complete transactions easily, and its use has allowed the good provision of services in its various types in Iraq, as the Iraqi government started years ago with this digital project and by converting the system of directorates and ministries one by one to the electronic system and one of these directorates is the Registration of Companies, where they started to certify documents by printing barcodes on them, and once it is scanned from any program or application, they are directed to their site or the relevant site bearing in mind that this project is under construction and needs time to complete. Consequently, all of this led to the existence of the legal differences and questions about digital systems and modern technology in terms of purchasing, using them, maintaining the confidentiality of existing information, who are the people allowed to access it and how to save it, in addition to the citizens’ use of this system because if they are misused, this will threaten safety, interest and security. This difference leads to two orientations: the first is the multiplicity of the uses of these means and their expansion, and the second is the need for legal regulation that sets the legal framework for these uses. In this article, we will discuss the laws and agreements that cover this topic.
What are the Laws related to Electronic Transactions?
It was necessary to issue laws and instructions for this type of transaction, as modern electronic means of communication allow the completion of financial transactions quickly and reliably, and these means are not without risks. These means are not without risks, as some people may take advantage of it to commit their crimes by fraud or compromising the privacy of these dealers and the confidentiality of their transactions. If the technical progress has tried to combat crimes in the field of communications and resorted to encrypting them in a way that preserves their confidentiality, these procedures have nevertheless led to people taking advantage of these procedures to commit their crimes using means of communication that are difficult to penetrate or identify their content, which means that technical progress has provided criminals with very powerful and effective means to commit crimes.
This law was issued and published in the Iraqi Gazette, but has not been implemented on the ground and the Iraqi courts do not yet rely on it correctly. According to Evidence Law No. 107 of 1979, documents are divided into official and ordinary; in addition to the agreements signed between Iraq and other countries which will be mentioned later. This law specified that electronic documents are equivalent to the paper document with a legal basis, provided that it meet certain conditions in terms of preservation, storage, retrieval at any time, not to modify the information contained therein, and that the scanned image of the electronic document bears the same capacity as the original copy if the conditions are met from where information match, preservation, storage and others. As for the electronic contracts, the law stated that the offer and acceptance of the contract can be done by electronic means and the identification of the site, the electronic document consider not issued by the site if the addressee knew that the document has not been issued by the site and other things specified for this type.
The law also covered commercial, financial and electronic papers “Securities”, as it may be created electronically provided of certain conditions, which are the conditions that must be met in them as stipulated by law which are the information processing system is able to prove the right to it and verify the electronic signature of the concerned parties, where the system must be able to prove the right to the commercial paper provides certain conditions as well, which are to ensure safe trading of the commercial paper through it, in an unchangeable manner, and to show the names of the stakeholders in the commercial paper. Electronic commercial and financial papers shall have the legal bases for its paper unless the law provides otherwise.
There are shortcomings in the Iraqi Evidence Law, as its texts must be reconsidered despite its reference to the court’s benefiting from the means of scientific progress in deriving legal evidence, but the electronic signature and electronic transactions law was more explicit through its texts. It is necessary to amend the Evidence Law so that it deals with some forms of modern electronic documents and its legal basis for proof, and to reconsider article (3) of the Electronic Signature Law. A penal penalty must be imposed for anyone who commits acts in violation of the provisions of electronic signature and electronic transactions.
The Difference between the Electronic Document and the Official Document
The Electronic Document “Ordinary Document” is any document that has been signed by any person and is considered an ordinary paper, while the Official Document is issued by a government department signed by a government employee or a public servant. The Evidence Law considers that the legal basis for the electronic document is of the same value as the ordinary document and not at the same level as the official document.
Agreements Related to Electronic Signature
In 2013, Iraq ratified an agreement regulating the provisions of electronic signature in the field of electronic transactions in the Arab countries, where its provisions apply to electronic contracts, the system of contract’s writing and the general provisions of the contract in terms of the expression of the will and its legal effect, validity and enforceability, without conflicting with the provisions of this agreement. As for the person in charge of electronic certification services, he must use reliable mechanisms and documents to issue, deliver and preserve electronic legalization certificates and take the necessary means to provide legal protection for it. Thus, the certifier ensures the validity of the authenticated information contained in the documents and the link between the signer and the audit department to sign it and the signatory’s sole control of the electronic signature creation department.
Terms of the Electronic Document
The terms of the electronic document are the existence of electronic writing as the law includes several conditions, which are:
The information contained in electronic writing should be able to be saved and stored so that it can be retrieved at any time.
The electronic writing should not be editable.
The electronic writing should be a function of who creates it.
The ability of the electronic document to be read and viewed, and its continuity and stability.
The basis of the electronic document is the legal strength for the data and information extracted via the internet in proving legal actions as one of the types of electronic documents.
Saving of Electronic Documents
The law adopted at the current time is to save documents written in Iraqi laws and according to the legal system of each directorate, the sender is obligated to save the electronic document in the same form that was ratified and delivered and must be kept in a place where its content can be viewed throughout the validity period and preservation in the final form and information on its source, the date and place of sending or receiving it.
Legal Basis for Electronic Signature
The electronic signature is an important and essential condition in an electronic document. Initially, the electronic signature must have been registered with the relevant bodies or directorates, including the General Commission for Communications and Post, and make a subscription with them, and register the electronic signature to be approved and adopted. Once the procedures for registering the electronic signature are completed, it can be legally adopted. The electronic signature within the scope of civil, commercial and administrative transactions shall have the same legal basis as the law prescribed for signatures in the provisions of the Evidence Law in the civil and commercial articles, taking into consideration the technical condition and controls contained in the law and the above agreement or those specified by the competent authority.
Types of Electronic Signature
Electronic Signature is one of the most important forms of electronic signature, as it has a superior ability to identify the parties in an accurate and distinctive manner.
Manual Signature converted into the electronic signature (signature with an electronic pen).
Signature using intrinsic features (Biometric Signature).
Signature with the password.
Electronic Signature and Arbitration
The electronic signature has become internationally accredited, but not completely in Iraq, and it has a legal basis in proving what the traditional signature has without difference, which will be reflected in electronic arbitration, where the parties of the dispute resort to electronic signature to express their satisfaction with what was agreed upon by resorting to electronic arbitration. However, the laws and legal materials for arbitration in Iraq are very limited, and they are mentioned in the civil law in certain articles that dealt with arbitration in brief. Thus, there is no legal force for the electronic arbitration law to keep pace with the law of evidence, the law of electronic signature and electronic transactions and its amendments in line with the development taking place in technology.
Some laws must be redrafted to be similar and in line with the law of electronic signature and electronic transactions, so that electronically signed documents are reliable and the possibility of using electronic means and electronic signature on electronic commercial contracts and relying on it in disputes and arbitration to wrap Iraq alongside the developed countries and to increase the investment character in Iraq. Also, the Iraqi Civil Procedure Code and the Evidence Law should be amended, or a new law should be organized for the arbitration law, including the electronic documents and electronic arbitration.
Also, specialized committees must be formed to follow up the implementation of this law and hold workshops to identify the importance of this law in concluding and implementing the electronic commerce contracts, and this is reflected in the increased effectiveness of arbitration and electronic use by courts and government directorates in settling the electronic commercial contract disputes.
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