Kuwait’s electronic transactions law (ETL) creates a set of rules relevant to electronic communication use as an accepted technique in that country instead of establishing a single system. E-commerce may now operate on a level playing field with paper-based transactions according to the electronic transactions law. Before establishing the ETL, it was a condition of a paper transaction that an individual writes down all the details, provides a handwritten signature, produces a paper in physical form, and keeps a record of info. An effort by ETL is to simplify and standardize the law so that both original paper copies and electronic documents are legally binding. This paper will analyze Kuwait’s electronic transaction law in terms of formation of E-contracts, consumer protection in E-contracts, personal data protection and regulation of electronic signature and electronic payment by Kuwait’s law.
Meaning of E-Contract, Formation, and Legality
If two or more people communicate by electronic means, such as email or computer programs electronic agents have been set to identify the existence of a contractual agreement, an e-contract is formed. Computer systems have modeled, defined, executed, and disseminated electronic contracts. An e-contract has two essential participants: the sender and the recipient. The “sender,” as defined by the Information Technology (IT) Act of 2008, is an individual who sends or makes an electronic communication, stores it, or transmits it to another person. The IT Act 2008 defines a “receiver” as an entity that receives the electronic record from the originator but does not include an Intermediary (Abu-Taieh et al., 2018). The following is the nature of an E-contract; absences of physical boundaries, high-risk factor because there is no utmost security, judicial obstacles complicate the enforcement of e-contracts, and no one person is in charge of the whole process of shrink-wrap contracts. Electronic records and digital signatures may be used as proof in court if necessary.
The law of contracts does not require any particular form when entering into a contract. If all the legal contract elements are in place, contact may be made through postal mail, facsimile or telex; orally, in person, over the phone, or by signing a formal receipt or document. As a result, if all contract components are available, such as facsimile, post, or telex transmissions, they may be used to create a legally binding agreement (Hiremath et al., 2020). An offer and an acceptance of an offer may be sent in the form of data messages unless otherwise agreed upon by the parties.
In light of the most current technological advances in the sector of communication based on the transmission of information via modern communication networks, the Kuwait national legislature has established Law No. 20 of 2014 (the “ET Law”). To implement the ET Law, the Executive Regulations – Ministerial Resolution No. 48 of 2014 (the “ET Bylaws”) were released on January 4, 2015 (Hiremath et al., 2020). For example, unless otherwise agreed by both parties or a different statute is in place, the Electronic Transactions Act (ET Law) governs electronic records and documents connected to commercial or administrative transactions and any disputes arising from their use.
Consumer Protection in E-Contracts
The citizens of Kuwait and the country’s government place high importance on protecting the rights and interests of consumers. If the market remains stable, consumers must be safeguarded against low-quality and counterfeit goods and prices. Thus, legislation on safeguarding end-users was enacted as a direct response (Bendale and Dubey, 2022). Individuals may do many financial tasks online in today’s digital world. There are many more instances of online financial activities conducted online, such as online auctions and charitable donations. Enacting laws and regulations that guarantee e-commerce transactions’ safety may help protect the growing number of clients who do business online. The absence of these measures would leave consumers open to frauds, fraud, and other criminal activities.
Legislation in Kuwait might make a difference between commercial and transactional materials and then put that differentiation into force. Regulators utilize the subject line of an unsolicited email to determine an email’s primary purpose under the law, as a reasonable consumer would. The subject line of a commercial email is likely to be seen as an indication by the recipient that the message contains commercial advertising or promotion (Bendale and Dubey, 2022). On the other hand, a transactional email is one in which the content of the message is directly related to the transaction between the sender and the recipient. For example, a product warranty, recall, or other required notice; changes to agreements; employment arrangements; or goods or services that the recipient has already authorized. Within 14 days after purchase, a Kuwaiti customer may return or exchange faulty goods, provided that it is not a rapidly perishable product. In this case, suppliers and vendors are both held jointly responsible. Article 10 covers defective or insufficient service consumers following contract terms or common business practices.
Personal Data and its Protection
Personal data, under the Data Protection Act, implies any information that identifies a specific person. Information that might be used to identify a live individual comes into this category. This description includes the individual’s name (and postal and email addresses), phone number, and other personal information, such as their driving license and bank account information (Kambovski, 2021). It comprises biometric data, internet cookies, mobile device IDs, and other identifiers relating to a person’s physiological, biological, mental, genetic, cultural, economic, or social identity. Data security is of vital significance when it comes to protecting valuable information. There is a risk that sensitive information (such as financial data or healthcare records) might get into the hands of the wrong people. A lack of control over who has access to personal information makes people more susceptible to fraud and identity theft.
Personal data is important in various ways, such as empowering people to make informed decisions. Gaining access to more information will make individuals better able to make informed choices and take advantage of new possibilities. For the future defense of people’s ideas, personal data helps in giving people evidence and justification to explain the facts and logic to back them up. In the absence of solid evidence, people are more likely to make mistakes and reach erroneous conclusions. Personal data can help identify problems which can further contribute to the determination of the most suitable solutions to such problems (Kambovski, 2021). It is not easy to run a firm perfectly, even though business and society are always growing.
There is no official personal data protection regulation in place in Kuwait currently. The Communications and Telecommunications Regulatory Authority (CTRA) recently issued new data privacy standards for telecommunications service providers (TSPs) and other industries. The regulation specifies how commercial and public sector service providers may collect, store, process, and transmit data. Individuals who have ever used an online platform, smart app, or cloud computing service that collects and processes personal data on behalf of another party are termed “service providers” under this new regulation. Traditional telecom service providers are included in this new definition of “service providers.” Personal or family data collected and processed by an individual or by security services to prevent crime and the execution of state safety measures are exempt from the regulation’s requirements (Hiremath et al., 2020). It is required under e-commerce legislation that customer data regarding positional affairs, individual health state, and other personal data is kept private and secret by the receiver and its employees and the provisions of Law No. 20 of 2014.
Regulation of Electronic Signature by Kuwait’s Law
Electronic signature refers to information in numbers, letters, or symbols filled in digitally, electronically, optically, or similarly to identify the signatory and distinguish them from others in electronic documents or registers. Electronic signatures are legally recognized as authentic and may be used as evidence in court. Electronic signatures or digital signatures issued by a Certifying Authority are enforceable in Kuwait (Abu-Taieh et al., 2018). There are certain use cases for e-Signatures outlined in the ET Law for electronic signatures. Suppose two or more legally competent parties agree. In that case, they will be considered such in most circumstances (this may be by agreeing electronically, verbally, or physically signing something).
The ET law requires that electronic signature fulfills the criteria of law decree regarding evidence in commercial or civil matters. For the electronic signature to be enforceable, it must conform to the law of decree no. 39 of 1980 criteria (Abu-Taieh et al., 2018).The use of electronic signatures for official purposes is rare in Kuwait. The Kuwaiti government is making rigorous efforts to boost its online presence and promote the usage of electronic commerce (AbdelGaber et al., 2020). For electronic signatures, Kuwaiti courts and judges follow Legislation No.20 of 2014, which deals with electronic transactions and their accompanying law. According to the E-Commerce Law, an electronic signature is presumed to be legitimate and enforceable if it meets all of the law’s validity requirements and no exceptions apply.
Regulation of Electronic Payment by the Kuwait Law
The ET Law clarifies that nobody is needed to receive electronic transactions, which is a crucial point to note. Following Central Bank of Kuwait (CBK) Resolution No. 44/430 of 2018, the CBK has prepared a set of rules to regulate electronic payment (e-Payment) operations in Kuwait (Al-Mesad, 2018). It is important for any company that wishes to engage in this activity, such as Kuwaiti e-commerce and fin-tech companies, to access electronic payment gateways from service providers (like local banks). These companies would have to be registered as Agents with the Service Providers.
Following Article 4 of the ET Law, electronic transactions may only be authorized and approved if the person making the request has given their consent. People’s actions may indicate that they have given the go-ahead in certain circumstances. On the other hand, government entities and agencies need explicit and clear consent and approval for all electronic transactions (Al-Mesad, 2018). The ET Law recognizes electronic payment as a viable payment method to the degree that it complies with the ET Law and the CBK Law No. 32 of 1968 (the “Banking Law”). When accepting electronic payments, financial institutions must This is known as the “ET Law.” Banks and financial institutions under CBK’s jurisdiction are governed by regulations and guidelines that the CBK has the authority to issue.
Conclusion
The paper has clearly analyzed the electronic transaction law in Kuwait. According to Kuwait’s law of electronic transactions, a person is entitled to fulfill a lawful requirement for a signature manually by employing communication electronically. Included in article 9 of Kuwait’s ETL are the conditions which offer the electronic document legal effect. A document must be retained in its original form for verification purposes if it was communicated, prepared, or received precisely as it was intended.
Reference List
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