What can you tell me about the legal situation for e-governance? It must be very complicated, no?
Yes and no. There is no need for a lot of special legislation on e-governance – in fact, it is not advisable to have such legislation, as this risks creating a parallel governance system while ideally e-governance should be a way to improve governance, not duplicate things. For example, many people expect Estonia to have a lot of e-governance legislation as we are so advanced in this area, but there are very few legal acts that are specific for the “e” aspect of our governance. What is essential from the legislative viewpoint related to e-governance is to go through and analyse all legislation to see if there are any obstacles to transitioning to use of electronic documents and digital signatures and so on. There are also certain issues that do need special rules as they are simply too different in the electronic world to be handled through reinterpretation of existing legislation.
What issues are these?
The main one is the digital identity or signature. The essence of a signature is well known in law: it is a way to show intent. This can be recreated electronically, but it would look quite different from a traditional signature so we need a law to show what kind of electronic signature that is accepted by the legal system: how is it to be made, who is responsible for verifying the means of making the signature and so on.
You mentioned possible legal obstacles to e-governance, any examples?
There are quite a lot of requirements of form for example in procedural or administrative legislation of different countries. This can be something simple as stating that certain decisions should be made on for example blue paper or something underlined in red. What do you do with this in the electronic world?
So what should you do?
There are different options. Of course, it is possible with special software or just use of text highlight or different coloured fonts to recreate the blue paper or red line. But I think it may be even more important to analyse what this requirement provides, what is different because of the blue paper or red line and is this really essential. In this way, introduction of e-governance can be a suitable time to go through and modernise legislation in a wider way than just what is directly derived from the technology.
Any more legal tips to those working on e-governance?
One important thing is to involve lawyers! I know that we lawyers are often the ones who are afraid of technologies and reluctant to deal with such matters, but hopefully that is changing and we all realise that in a technology-dependent world, nearly all aspects of governance and society involve technology in some form. If lawyers are involved early in the process, there does not have to be any legal complications with e-governance, but if technologies are introduced without attention to possible legal implications, there could later on be important problems. For example, it is essential that e-transactions have full legal value if a country wants to transition to e-governance. We cannot have a situation in which “paper evidence” or similar is asked if and when something goes to court. I would also add as an important legal point that data protection must be considered. On this, there should be legislation. It does not have to be special for electronic data – the content rather than the form of data should be decisive – but rules are needed. Technology can help to make data more secure rather than the other way around, and such possibilities must be made use of.