There is no alternative

It is the law of commerce that those whose gift it is to offer work will do so on terms that protect their legitimate interests, and that those whose lot it is to compete for work will accept those terms.

And that illustrates the subject of this article, namely that, in the light of the Electronic Communications Bill now making its way through parliament, those offering work may be encouraged to do so on terms that specify the use of electronic communication. It should be recalled that the latest JCT contracts are already geared up with a protocol for those who wish to go much further than just sending e-mails. These contracts already incorporate an electronic data interchange supplement.

The idea of EDI is that everyone in a given loop – say, the parties involved in a project – programmes their computer in the same way so that they will all be able to display incoming messages and react to them.

A recipient computer will not wait for a human to read the message; it will recognise what is needed and trigger the next steps in the process.

The concept has been used for many years in the purchase of goods. For example, if the seller’s and buyer’s computers are set up to recognise standard messages, the buyer can be the person who, from the computer in his own office, automatically instructs the seller’s warehouse, accounts department and buying department to dispatch, invoice and re-stock respectively.

The aim of the bill is to smooth the use of electronic communications

It gives electronic communications the same legal footing as written ones

It does not make them compulsory

It was in recognition of the fact that many processes involved in building or engineering projects lend themselves to this degree of automation that the JCT produced its protocols, and other industry bodies produced some standard messages in selected areas such as the exchange and alteration of bills of quantities and the reporting of and valuation of progress. The growth of the Internet makes EDI much more of a reality, and the Electronic Communications Bill moves things a step further.

One of its aims is to remove doubts about electronic communications by putting them on as good a legal footing as written ones. So, under the bill as drafted, the courts will be able to regard the sender’s code (or “electronic signature”) as having as much weight for proving the truth, accuracy and intent of the communication as a signature on a written document. The bill will give ministers the power to identify acts of parliament that allow only paper communications and to amend them to allow electronic communications as well.

The bill also recognises the natural human scepticism towards messages that turn up on our screens out of (almost) nowhere. There is always some concern that they may have been altered in transit between computers, or even doubt as to whether the person named as sender really did send it. The bill recognises that people will become more confident if service providers work to common security standards and therefore puts in place a framework for potential statutory regulation that the government can introduce if the IT industry fails in its own self-regulation over the next few years.

The bill does not demand that electronic communications be used. Instead, it is intended to smooth the way when they are. The EDI supplement that is incorporated into the JCT’s 1998 contracts is also optional. It operates on the basis that, if one party wishes to use EDI, it can be used among those parties that are expressly included in the loop and in respect of such documents (or, to be precise, messages) as are expressly identified. The transfer of those communications is then regulated by a separate EDI agreement that has provisions for matters such as confidentiality, authenticity and storage.