(a) hinder trade conducted by electronic means, or
(b) have the effect of treating trade conducted by electronic means more restrictively than trade conducted by other means.
Article 10.3. Customs Duties
1. Neither Party shall impose customs duties on electronic transmissions between a person of one Party and a person of the other Party.
2. For greater certainty, paragraph 1 shall not prevent a Party from imposing internal taxes, fees or other charges on electronically transmitted content, provided that such taxes, fees or charges are imposed in a manner consistent with this Agreement.
Article 10.4. Non-Discriminatory Treatment of Digital Products
1. No Party shall accord less favorable treatment to digital products created, produced, published, licensed, commissioned, or first made available on a commercial basis, in the territory of the other Party, or to digital products of which the author, performer, producer, developer, or owner is a person of the other Party, than it accords to other similar digital products. (5)
2. This Article shall not apply to broadcasting.
Article 10.5. Legal Framework for Electronic Transactions
1. Each Party shall endeavour to adopt or maintain a legal framework governing electronic transactions that is consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996 of 12 June 1996, the United Nations Convention on the Use of Electronic Communications in International Contracts, of 23 November 2005, among others.
2. Each Party shall endeavour to:
(a) avoid unnecessary regulatory burdens on electronic transactions, and
(b) facilitate the views of interested persons in the development of its legal framework for electronic transactions.
Article 10.6. Authentication and Electronic Signature
1. A Party shall not deny the legal validity of an electronic signature solely on the ground that it is made by electronic means, except as otherwise expressly provided for in its respective legal system.
2. Neither Party shall adopt or maintain measures on electronic authentication that:
(a) prohibit the parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent the parties to an electronic transaction from having the opportunity to prove to judicial or administrative authorities that their transaction complies with any legal requirement with respect to authentication.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the authentication method meet certain performance standards or be certified by an authority accredited under its legal system.
4. The Parties shall promote the use of interoperable electronic signatures. To this end, the Parties may establish homologation mechanisms and criteria for electronic authentication, observing international standards. For this purpose, they may consider the recognition of electronic signature certificates, issued by certification service providers, operating in the territory of the Parties in accordance with the procedure determined by their legal system, in order to safeguard the standards of security and integrity.
Article 10.7. Consumer Protection Online
1. The Parties recognize the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent and deceptive business practices when engaging in electronic commerce.
2. Each Party shall adopt or maintain consumer protection laws to prohibit fraudulent and deceptive business practices that cause harm or potential harm to consumers who engage in online business activities.
3. Each Party shall endeavour to adopt non-discriminatory practices in protecting users of electronic commerce from breaches of the protection of personal information occurring within its jurisdiction.
4. The Parties recognize the importance of cooperation between their respective consumer protection agencies or other competent bodies in activities related to cross-border electronic commerce in order to enhance consumer welfare.
5. The Parties recognise the importance of protecting consumers from misleading advertising generated in electronic commerce.
6. The Parties shall adopt mechanisms of withdrawal in contracts concluded by electronic means, for the protection of consumers.
Article 10.8. Protection of Personal Information
1. The Parties recognise the benefits of protecting the personal information of users of electronic commerce and the contribution this makes to enhancing consumer confidence in electronic commerce.
2. Parties shall adopt or maintain laws, regulations, or administrative measures for the protection of personal information of users engaged in electronic commerce. The Parties shall take into consideration the general principles that exist in this area, as provided in Article 10.2.4(g).
3. Each Party shall make efforts to ensure that its legal framework for the protection of personal information of users of electronic commerce is applied in a non-discriminatory manner.
4. Each Party should publish information on the protection of personal information it provides to users of electronic commerce, including how:
(a) individuals can exercise recourse, and
(b) companies can meet any legal requirement.
5. The Parties shall encourage the use of security mechanisms for the personal
information of users, and its dissociation, in cases where such data is provided to third parties, in accordance with their respective legal systems.
Article 10.9. Paperless Trade Administration
Each Party shall endeavour to:
(a) making trade administration documents available to the public in electronic form; and
(b) accept electronically submitted trade administration documents as the legal equivalent of the paper version of those documents.
Article 10.10. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to applicable policies, laws and regulations, the Parties recognize the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of the consumer's choice available on the Internet, subject to reasonable network capacity management by the operator;
(b) connect end-user devices of the consumer's choice to the Internet, provided that such devices do not harm the network, and
(c) access information about the network management practices of the consumer's Internet access service provider, so that consumers can make informed consumer choices.
Article 10.11. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognize that each Party may have its own regulatory requirements regarding the transfer of information by electronic means.
2. Each Party shall permit the cross-border transfer of information by electronic means, including personal information, where such activity is for the conduct of the business of a person of a Party.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to pursue a legitimate public policy objective, provided that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
Article 10.12. Computer Facilities
1. The Parties recognise that each Party may have its own regulatory requirements relating to the use of computer facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. A Party may not require a person of the other Party to use or locate computer facilities in the territory of that Party as a condition of doing business in that territory.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to pursue a legitimate public policy objective, provided that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
4. The Parties undertake to exchange best practices, experiences and existing regulatory frameworks with respect to IT facilities.
Article 10.13. Unsolicited Electronic Commercial Communications
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic communications that:
(a) require providers of unsolicited commercial electronic communications to facilitate the ability of recipients to prevent the continued receipt of such messages; or
(b) require the consent of recipients, as specified in accordance with the legal system of each Party, to receive electronic commercial communications.
2. Each Party shall provide mechanisms against providers of unsolicited commercial electronic communications that do not comply with the measures adopted or maintained pursuant to paragraph 1.
3. The Parties shall seek to cooperate in appropriate cases of mutual interest relating to the regulation of unsolicited commercial electronic messages.
Article 10.14. Cooperation
1. Recognizing the global nature of electronic commerce, the Parties shall endeavour to:
(a) work together to facilitate the use of e-commerce by MSMEs, MSMEs and the incorporation of women in e-commerce, with the objective of generating best practices with a view to increasing capacities to conduct business, collaborate and cooperate on technical issues;
(b) sharing information and experiences about laws, regulations, and programs in the field of electronic commerce, including, inter alia, those related to protection of personal information, consumer protection, security in electronic communications, authentication, intellectual property rights, and e-government;
(c) exchange information and share views on consumer access to products and services offered online between the Parties;
(d) actively participate in regional and multilateral fora to promote the development of e-commerce;
(e) encourage the development by the private sector of self-regulatory methods that promote electronic commerce, including codes of conduct, model contracts, trust seals, guidelines and compliance mechanisms;
(f) actively participate in regional and international forums to promote cross- border electronic signatures, and
(g) promote technical assistance and knowledge transfer in best practices in information and communication technologies.
2. The Parties should exchange information and experiences concerning their legislation on the protection of personal information, in particular on commercial relations, their development and their treatment by the supervisory authority.
Article 10.15. Cooperation on Cybersecurity Matters
The Parties recognize the importance of:
(a) develop the capacities of their national entities responsible for cybersecurity and cyber security incident response;
(b) use existing collaborative mechanisms to cooperate in identifying and mitigating malicious practices or the dissemination of malicious code affecting the Parties' electronic networks, users' personal information or protection against unauthorized access to private information or communications, and
(c) exchange best practices on critical infrastructure resilience, cyber defence and on measures to prevent identity theft in e-commerce.
Article 10.16. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency.
Chapter 11. TELECOMMUNICATIONS (1)
Article 11.1. Definitions
For the purposes of this Chapter:
subscriber, subscriber or customer means the user who has entered into a contract with the provider of public telecommunications services.
leased (2) circuits means telecommunications facilities between two or more designated points that are intended for the dedicated use or availability to a particular customer or to other users chosen by that customer;
co-location means access to and use of physical space for the purpose of installing, maintaining, or repairing equipment on premises owned or controlled and used by a dominant supplier for the provision of public telecommunications services;
network element means a facility or equipment used in the provision of a public telecommunications service, including the features, functions and capabilities that are provided through such facility or equipment;
essential facilities means the functions and elements of a network or of a public telecommunication service that are essential to the operation of a public telecommunication network or service:
(a) are supplied exclusively or predominantly by a single or limited number of suppliers, and
(b) it is not economically or technically feasible to replace them for the purpose of providing a service;
interconnection (3) means linking with suppliers providing public telecommunications services for the purpose of enabling users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
non-discriminatory means treatment no less favourable than that accorded, in like circumstances, to any other user of like public telecommunications services;
reference interconnection offer (4) means an interconnection offer offered by a supplier that is sufficiently detailed to enable suppliers of public telecommunications services willing to accept such rates, terms and conditions to obtain interconnection;
telecommunications regulatory body means the body or bodies of each Party responsible for telecommunications regulation;
cost-oriented means cost-based, and may include reasonable utility and involve different costing methodologies for different facilities or services;
portability means the ability of users of public telecommunications services to keep the same telephone numbers, without loss of quality and reliability when switching to a similar public telecommunications service provider;
dominant supplier (5) means a supplier of public telecommunications services that has the ability to significantly affect the conditions of participation (in terms of price and supply) in the relevant market for public telecommunications services, as a result of:
(a) the control of essential facilities, or
(b) the use of its market position;
international roaming means a commercial mobile service provided pursuant to a commercial agreement between public telecommunications service providers that allows users to use their local mobile phone or other device for voice, data or text messaging services while outside the territory in which the end user's home network is located;
public telecommunications network means the telecommunications infrastructure used to supply public telecommunications services under the terms and conditions set out in each Party's legislation;
public telecommunications service means any telecommunications service as defined in each Party's law, explicitly, that is offered to the general public. Such services may include, but are not limited to, telephony, transmission of intermediate data and services (6) that typically incorporate customer-supplied information between two or more points without any end-to-end change in the form or content of such information;
telecommunications means any transmission, emission or reception of signs, signals, writings, images, sounds and information of any nature, by physical line, radioelectricity, optical means or other electromagnetic systems;
enabling title means the authorizations, licenses, concessions, permits, registrations or any other type of enabling title, which a Party may require to supply public telecommunications services, and
user means any natural or legal person consuming public telecommunications services.
Article 11.2. Scope of Application
1. This Chapter applies to:
(a) measures related to access to and use of public networks and public telecommunications services;
(b) measures relating to the obligations of suppliers of public telecommunications services, and
(c) other measures related to public networks and public telecommunications services.
2. This Chapter does not apply to measures relating to broadcasting and cablecasting of radio or television programming, except to ensure that enterprises providing such services have continued access to and use of public networks and public telecommunications services in accordance with Article 11.3.
3. Nothing in this Chapter shall be construed to mean:
(a) oblige the other Party to require any enterprise to establish, construct, acquire, lease, operate or supply public telecommunications networks or services, where such networks or services are not offered to the general public;
(b) oblige the other Party to require any enterprise, engaged exclusively in the broadcasting or cable distribution of radio or television programming, to television, make its cable distribution or broadcasting facilities available as a public telecommunications network; or
(c) prevent the other Party from prohibiting persons operating private networks from using them to supply public telecommunications services to third persons.
Article 11. Access to and Use of Public Telecommunication Networks and Services
1. Each Party shall ensure that the enterprises of the other Party have access to and may make use of any public telecommunications service, offered in its territory, on reasonable and non-discriminatory terms and conditions. This obligation shall be implemented, including, inter alia, as specified in paragraphs 2 through 6.
2. Each Party shall ensure, in accordance with its respective legislation, that such enterprises are permitted:
(a) purchase or lease, and connect terminals or equipment that interface with public telecommunications networks;
(b) to provide services to single or multiple users through owned or leased circuits;
(c) connect owned or leased circuits to public networks and telecommunications services or to circuits owned or leased by another company, and
(d) perform switching, routing, signaling, addressing, processing, and conversion functions.
3. Each Party shall ensure, in accordance with its respective legislation, that the enterprises of the other Party may use public telecommunications networks and public telecommunications services to transmit information in its territory or across its borders, and to access information contained in databases or stored in a machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, each Party may take such measures as may be necessary to ensure the security and confidentiality of information transmitted over public telecommunications networks, or to protect the privacy of users' personal data, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no conditions are imposed on access to and use of public telecommunications networks and services other than those necessary to:
(a) safeguard the responsibilities of providers of public telecommunications networks and public telecommunications services, in particular their ability to make their networks or services available to the general public; or
(b) protect the technical integrity of public telecommunications networks or utilities.
6. Provided that the criteria set out in paragraph 5 are met, conditions for access to and use of public telecommunications networks and services may include:
(a) requirements to use specific technical interfaces, including interface protocols, for interconnection with such networks and services;
(b) requirements, where necessary, for the interoperability of such networks and services;
(c) the approval of terminal equipment or other equipment interfacing with the network and technical requirements related to the connection of such equipment to those networks; and
(d) notification, registration and granting of authorisations.
Article 11.4. Use of Telecommunication Networks In Emergency Situations
1. Each Party shall endeavour to take the necessary measures to ensure that telecommunications companies transmit, at no cost to users, alert messages defined by its competent authority in emergency (7) situations.
2. Each Party shall encourage suppliers of public telecommunications services to protect their networks from severe failures caused by emergency situations in order to ensure public access to public telecommunications services in such situations.
3. The Parties shall endeavour to manage, in a joint and coordinated manner, actions in the field of telecommunications in emergency situations, and the planning of resilient networks to failures, aimed at mitigating the impact of natural disasters.
4. Each Party shall take the necessary measures to ensure that mobile telephone service providers grant the possibility for international roaming users of the other Party to make calls to that Party's toll-free emergency numbers, in accordance with its domestic coverage.
Article 11.5. Interconnection between Public Telecommunications Service Providers
General Terms and Conditions of Interconnection
1. Each Party shall ensure that suppliers of public telecommunications services in its territory provide interconnection to suppliers of public telecommunications services of the other Party:
(a) at any technically feasible point in your network;