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Serbian e-laws update
Two new e-laws have been enacted in Serbia in the recent months and the Law on e-signatures has been revived thanks to an update of the complementary regulations. The rush of legislative activity on this front is in direct corelation with the Serbian government’s desire to become much more cost effective and citizen friendly. Some other important steps in that direction have been the introduction of paperless government sessions, electronic procurement processes and improved electronic birth registers. We will now look at the the three framework electronic laws, namely the Law on e-signatures, the Law on e-commerce and the Law on e-documents which are all based on EU legislation. The fourth e-law, the Law on e-communications which is set to replace the current Law on telecommunications is also on its way.
The Law on e-signatures is the first Serbian e-law. It has been enacted in December 2004 but for all practical purposes it has been in use since 2009 when a set of belonging regulations was updated. As a direct result of the update, the Post of Serbia became the first registered certifying body authorised to issue qualified electronic certificates. The Serbian Law on e-signatures is based on the EU directive on e-signatures (1999/93/EC) and is composed of six main sections. The first (general) section describes the law’s applicability and exceptions, contains definitions of technical and other terms and sets out electronic archiving requirements largely following the EU standards. In the second section of the Law on e-signatures the electronic signature itself and the qualified electronic signature which uniquely identifies the signatory are defined. The strict procedures needed for the formation of a qualified e-signature and its validation are laid out in detail. Following that, the third section defines what a qualified electronic certificate is, defines the role and obligations of a „certifying body“ which issues such certificates and finally prescribes the evidentiary requirements enforced by the Register of certifying bodies. In the fourth section, the rights, obligations and liabilities of users and issuers of qualified electronic certificates are defined including the liability of issuers for damages suffered by third parties who relied on their certificates. Inspection of the work performed by certifying bodies and monitoring of general application of the Law on e-signatures is done by the appropriate state body which can suspend certifying bodies and even remove them from the Register in accordance with the section five of the Law. Finally, the sixth section introduces penalties of up to 400.000 RSD (currently cca. 4.000 EUR) which apply both to users (legal and natural persons) and certifying bodies who are found in breach of the Law, especially the fourth section on rights, obligations and liabilities but also in breach of electronic archiving requirements. The Law on e-signatures ensures that qualified electronic signatures produce the same legal effect as traditional signatures except under the specific circumstances and also ensures that the foreign qualified electronic certificates issued by foreign certifying bodies are recognized in Serbia if they meet predefined requirements.
The new Law on e-commerce has been enacted in June 2009 and is based on the EU directive on e-commerce (2000/31/EC). For the first time in Serbia, internet based economy will be regulated appropriately, the internet service providers will have to be accountable and the e-consumers will be better protected. The first (general) section of the Law sets the ground in terms of the Law’s applicability and exceptions and defines the main terms used throughout the text. The following section, sets the specific requirements which apply to e-commerce and other information service providers related to the right of a consumer to be sufficiently informed about the provider’s business. This includes the obligation of the provider to present any prices clearly and unequivocally. Also, so called „commercial message“ is defined and its proper usage specified including restrictions applicable to unsolicited advertising. The third section of the Law defines the meaning of a contract in electronic form i.e. electronic contract. The validity of an e-contract, including electronic offer and acceptance shall not be questioned because of its electronic form alone. Exceptional situations in which e-contracts are not legally valid are specifically defined e.g. transfer of ownership in real estate. Further on, the third section sets out obligations of the e-commerce service providers related to consumer protection issues such as the obligation to inform the consumer prior to entering the contractual relationship about the nature of the transaction and steps required to conclude the contract, the contents of the contract, the applicable terms and conditions etc. Finally, providers are required to enable consumers to access the text of the contract, reproduce, re-use and locally store the same. The rule on when an e-contract is concluded is based on the Serbian Law on obligations and its „reception theory“. An e-contract is concluded at the time the offeror receives an electronic message containing the offeree’s statement of acceptance. Such acceptance is deemed received only if the offeror can access the message containing it. The fourth section of the Law sets out liabilities of internet service providers (ISPs) towards consumers and state regulators. This includes limitation of ISP’s liability for the content of messages transmitted through their networks if specific requirements are met (take down procedure etc.), for temporary and permanent storage of such content and linking to other ISP’s content. In the fifth section of the Law the supervision and inspection procedures are defined. Finally, the sixth section sets out penalties of up to 1.000.000 RSD (currently cca. 10.000 EUR) applicable to service providers in breach of the Law as well as the penalty of suspension of all commercial activities for up to 6 months in case of repeated or significant breaches.
The third e-law in force is the Law on electronic documents. It has been enacted in July 2009. Applicability of the Law in general, and e-documents in particular including the exceptions, as well as the definition of the terms used and the definition and meaning of an e-document itself make up the first section of the Law. Finally, the section specifies that the legal validity of an e-document cannot be questioned only because it’s in an electronic form. The second section of the Law specifies technical requirements for the production of an e-document as well as technical characteristics related to its forms of presentation both internal and external. It also specifies that a legal copy of an e-document cannot exist in an electronic format. The following, third section of the Law deals with rules on delivery of e-documents especially those related to confirmation of e-document reception and exchange and filing of e-documents between citizens and the government and within the government itself. The preservation, archiving and protection of e-documents is regulated in the fourth section of the Law which provides for the possibility of outsourced archiving as well. The fifth section defines procedures for the creation and application of time stamps which are attached to e-documents and also sets out requirements which have to be met by the registered issuers of time stamps such as procedures related to the registration with the Register of time stamp issuers. Supervision and inspection of time stamp issuers is set out in the sixth section of the Law while the seventh and the final section prescribes penalties of up to 1.000.000 RSD (currently cca. 10.000 EUR) applicable to time stamp issuers who are in breach of this law.
As a conclusion, it can be said that Serbian e-laws will contribute significantly to the continued general development of the information society and in particular will open up exciting new business opportunities both for local and foreign investors.
Written by Alex Petrovic, LL.B. (Hons.), AIT, Partner