Presumption as to Electronic Agreements
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This article is written by Anubhab Banerjee.

 

The internet is one of the most amazing products of technological development. The advent of the Internet has helped boost communication and connectivity throughout the globe and has hence helped further the idea of globalisation. Rise of the Internet and its constant use in our regular lives have led us to a stage where several commercial and social transactions are performed over the Internet. A lot of these transactions are commenced over the various e-commerce and m-commerce platforms available to us today. Such transactions being performed over the internet have given rise to the concept of e-contracts and accordingly, there are several legal implications attached to it. The presumption of such electronic agreements/e-contracts through the eyes of the Indian Courts concerning their admissibility under the Indian Evidence Act, 1872 has been discussed in this article.

What is e-commerce and m-commerce?

E-Commerce

The term e-commercial is used to define commercial transactions which take place over the Internet through an electronic medium. The buying and selling of goods and services at different online platforms and websites is termed as e-commerce. E-commerce includes the transfer of money and data to carry out the buying and selling of goods available online on such e-commerce websites. Some examples of such e-commerce platforms are Amazon, Flipkart, Snapdeal, etc. 

M-Commerce

The term m-commercial can be said to be a form of e-commerce itself. Though it is a process in which e-commerce transactions i.e. buying and selling of goods online over a platform is done through a portable wireless device such as a Mobile phone, tablet, etc. The only difference between-commerce and m-commerce is that e-commerce is done over a wired device such as a desktop which is fixed at one place and is not easy to carry, while in the case of m-commerce such is done through a portable and wireless device which can be carried by a performer anywhere. Some examples of m-commerce transactions can be the ones which are done through the android or ios applications of the different e-commerce companies such as Amazon, Flipkart, Snapdeal, etc.

What are e-contracts?

The Indian Contract Act, 1872 defines a contract to be a lawful agreement between two parties for buying and selling of goods and services between them for a valid consideration and such an agreement should be entered into by the free consent of both the parties. An e-contract is nothing but an electronic version of such contracts where both the parties agree for the buying, selling or use of certain goods and services which are available over the internet. These e-contracts are mostly used by the e-commerce and m-commerce platforms available online.

The Information Technology Act, 2008 under Section 10 defines e-contracts to be contracts which are formed as a result of communication of proposal, acceptance, counter proposals and acceptances, for performing a particular transaction through digital means. 

Digital Signature

The consent of the parties to an e-contract can be recognised with the help of the digital signatures which should be present on behalf of the parties in these contracts. A digital signature is a code which is attached to every document online to verify the contents of a document and for recognition of the senders’ identity. The digital signature help identify the evidentiary value of an e-contract as the digital signature becomes a proof of consent given by the parties entering an e-contract. Section 67A of the Indian Evidence Act considers the attachment of a digital signature to an e-contract as enough proof for consent, though such needs to be proved if such digital signature is alleged to be affixed without consent. 

Types of e-contracts

E-contracts are categorised under two broad categories namely:

  • E-contracts which are formed by way of emails. 

These are the agreements in which consent of the parties is recorded with the help of the communication between them through emails. These types of communications are usually done through a single or a series of emails which can be considered sufficient to prove that considerations had been made for an e-contract, between the parties to such an e-contract. It was in the case of Trimex International FZE Vs Vedanta Aluminium Limited that the Indian Courts recognised the use of e-contracts for the first time.

  • E-contracts which are formed through online agreements.

Online agreements are of three types, namely:

  1. Browse wrap agreements which are the ones a party enters into by the use of a website.
  2. Shrink Wrap Agreements are the ones which parties agree to to use a software which such users buy.
  3. Click Wrap Agreements are the ones which are entered into by the parties by clicking on the ‘I Agree” option while surfing the internet.
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Can e-contracts be valid evidence by the Indian Courts?

Contacts are considered as admissible evidence in the Indian Courts. The question which arises here is whether the same provisions which apply with regards to the admission of a normal contract are applicable for e-contracts as well? It is answered by Section 92 of the Information Technology Act itself. It is Section 17 of the Indian Evidence Act which deals with admissions and section 17 itself defines admission to be a statement whether oral or documentary or contained in electronic form, which has any kind of inference with any relevant fact of a case. 

It is Section 65A of the Indian Evidence Act that is used by the courts in India to recognise e-contracts as valid evidence. Section 65A of the Indian Evidence Act, says that electronic records can be proved at the court of law by way of complying with the provisions of Section 65B of the Indian Evidence Act. Section 65B deals with the provisions with regards to the admissibility of documents as evidence under the Indian Evidence Act.

Affixing a digital signature to an e-contract is valid proof of consent under the Indian Contract Act, 1872. Such an e-contract with a genuine digital signature attached to it can be admissible evidence under the Indian Evidence Act, 1872. The Indian Evidence Act under section 73A talks about the validity and genuineness of such digital signatures. The section also tells us about the production of a ‘Digital Signature Certificate’ in front of the court in case any doubt arises with regards to the affixed digital signature to an e-contract.

Thus, we can see that e-contracts have valid evidentiary value under the eyes of the Indian Courts under Section 65A of the Indian Evidence Act. Though, the presumption of the Indian courts with regards to e-contracts under the Indian Evidence Act is also important to consider. To get well accustomed with the evidentiary value of e-contracts concerning the Indian Evidence Act, we need to consider the following provisions\sections of the Indian Evidence Act, 1872:

Section 85A

This section specifically talks about the presumptions of the courts in India with regards to electronic agreements and says that the courts shall presume that every available electronic recording which has an electronic signature affixed to it shall be considered to have a valid evidentiary value under the Indian Evidence Act and in the eyes of the courts in India. Though there are a few restrictions on such presumptions which shall be discussed in the following sections.

Section 85B

This section tells us that the court shall presume that the e-contract or documents which are being presented in front of the court have not been tampered with i.e. they are presented in their original form without anyone making any alterations in it, in case it has been proved that such records have been tampered with. The secure status of such information shall be required to be maintained until a specific time. The section also tells us that once a digital signature is affixed to an agreement available online, such shall be presumed by the courts to be an acceptance of such agreements.

Section 85C

This section tells us that if a digital signature is affixed to a particular document then the court shall presume that such document is true and correct.

Section 88A 

The very purpose of this section is to define the terms ‘addressee’ and ‘originator concerning an e-contract. It mainly talks about the power of the court with regards to presumption of the addressee of an electronic communication. The section says that the courts shall presume the ‘addressee’ to be a person to such electronic communication has been directed by the ‘originator’. Though, as per this section, the court does not have any power with regards to the presumption of who the ‘originator’ of the thread of electronic communication is.

Section 90A

This section helps the courts deal with a record which is more than 5 years old. In the eyes of the court and the Indian Evidence Act, if such a record is in proper custody then the court shall presume that the digital signature has been affixed with such document to authenticate its validity.

Section 65B

This section helps us understand the provisions under which an e-contract shall be admissible as evidence in front of a court in India. It says that any information which is recorded through an electronic medium and is available as on a printed paper, stored or copied in optical or magnetic media produced by a computer shall be admissible as an evidence if it satisfies the conditions provided in this section. The conditions set forth under section 65B of the Indian Evidence Act, are as follows:

  • The computer output i.e. the electronic information produced as evidence should be from the computer which has been regularly used to process or store such digital information for any activity and such activities are expected to be performed by a person who has lawful control over the use of the computer.
  • During the concerned period, the relevant information should have been regularly fed to the computer in the ordinary course of such activities.
  • In case the concerned computer was not working properly during the period, it should be notified that such non-functionality did not in any way affect the electronic record or the accuracy of its contents.
  • The reproduction of such digital information or the derivations associated with the information should have been fed into the computer during the regular conduct of associated activities.

The section tells us that any such evidence which is provided to the court in the form of e-contract shall be accompanied with a certificate. Such a certificate shall be a confirmation by the person occupying the legally responsible position for processing the information, with regards to fulfilling all the conditions specified under Section 65B of the Indian Evidence Act, 1872. Such a person shall be the one who is responsible for operating the computer which processed all the information related to the concerned activity.

Conclusion

The conduct of commercial and social transactions through e-contracts has had a revolutionary impact on our society. The Indian Evidence Act, 1872 values e-contracts in the same way as it does for written or verbal contracts. The Indian Evidence Act and its relevant provisions help us understand the aspects with regards to the admissibility of electronic contracts in the purview of the India courts. The Indian evidence act also helps us understand the extent of presumptions which can be made by the courts in India under the act concerning evidence recorded by the means of an electronic medium.

The presumptions with regards to certain provisions concerning e-contracts under the Indian Evidence Act, 1872 have been left open for interpretation by the Courts. With the growth in internet-related activities through digital mediums, more precise regulations with regards to e-contracts would be required. As keeping such provisions open for varied interpretations may lead to confusion amongst the members of the legal fraternity while dealing with matters related to processing and admissibility of e-contracts. Though over the period the Indian Legal Regime has adapted itself to deal with technological advancements. There is a lot of scope for improvements in the processes of dealing with e-contracts under Indian law.


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