CHAPTER 00:00
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS

ARRANGEMENT OF SECTIONS

SECTION

PART I
Preliminary

   1.   Short title

   2.   Interpretation

PART II
Legal Recognition of Electronic Communications

   3.   Legal recognition of electronic communications

   4.   Information required in writing

   5.   Legal recognition of electronic signatures

   6.   Signatures

   7.   Requirements for originals

   8.   Admissibility and evidential weight of electronic communications

   9.   Requirement for retention of information

   10.   Requirement for production of documents or information

   11.   Notarisation and certification

PART III
Legality of Electronic Transactions

   12.   Variation by agreement

   13.   Formation and validity of contracts

   14.   Recognition of electronic communications by parties

   15.   Use of electronic signatures by parties

   16.   Time of contract formation

   17.   Use of automated message systems

   18.   Error in electronic communications

   19.   Exclusions

PART IV
Transmission of Electronic Communications

   20.   Attribution of electronic communications

   21.   Time of dispatch of electronic communications

   22.   Time of receipt of electronic communications

   23.   Place of dispatch and receipt of electronic communications

   24.   Acknowledgement of receipt

PART V
Secure Electronic Signatures

   25.   Requirements for electronic signatures

   26.   Secure electronic signatures

   27.   Conduct of signatory

   28.   Conduct of certification service provider

   29.   Reliable and secure systems

   30.   Conduct of relying party

   31.   Recognition of foreign certificates and electronic signatures

PART VI
Consumer Protection

   32.   Application of Part

   33.   Supplier to provide information

   34.   Performance

   35.   Cooling-off

   36.   Applicability of foreign law

   37.   Non-exclusion

PART VII
On-line Marketing

   38.   Unsolicited commercial communications

PART VIII
Service Providers

   39.   Application

   40.   Mere conduit

   41.   Caching

   42.   Hosting

   43.   Information location tools

   44.   Take-down notification

   45.   Monitoring

PART IX
General Provisions

   46.   Offences and penalties

   47.   Regulations

Act 14, 2014,
S.I. 38, 2016.

An Act to provide for the facilitation and regulation of electronic communications and transactions; to provide specifically for electronic commerce and electronic signatures and for matters incidental and connected thereto.

[Date of Commencement: 1st April, 2016]

PART I
Preliminary (ss 1-2)

1.   Short title

   This Act may be cited as the Electronic Communications and Transactions Act.

2.   Interpretation

   In this Act, unless the context otherwise requires-

   “addressee” in relation to an electronic communication, means a party who is intended by the originator to receive the electronic communication, but does not include a party acting as an intermediary in respect of that electronic communication;

   “automated message system” means a pre-programmed, or other automated system used to initiate an action, respond to electronic communications, or to generate other performances in whole or in part, without review or intervention by a person each time an action is initiated or a response is generated by the system;

   “cache” means high speed memory that stores data for relatively short periods of time in information systems in order to speed up data transmission or processing;

   “certificate” means an electronic attestation which links signature verification data to a person and confirms the identity of the person;

   “certification service provider” means a person providing an authentication product or service incorporated in or logically associated with an electronic communication;

   “Communications Regulatory Authority” means the Communications Regulatory Authority established under section 3 of the Communications Regulatory Authority Act;

   “consumer” means an individual who enters or intends to enter into an electronic transaction with a supplier for the supply of goods or services offered by that supplier;

   “data message” means information generated, sent, received, or stored by electronic, magnetic, optical or similar means, including but not limited to, electronic data interchange, electronic mail, mobile communications, such as short message service (SMS) messages, and audio or video recordings;

   “direct costs” means costs incurred in the return of the goods or services such as transport costs or postage but excludes any handling fees;

   “electronic” means, in relation to technology, having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;

   “electronic communication” means information generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means;

   “electronic data interchange” means the electronic transfer of structured data from one information system to another information system in accordance with agreed standards;

   “electronic record” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device, and includes a display, print out or other output of that data;

   “electronic signature” means data in electronic form attached to or logically subjoined to an electronic communication, and which can be used to identify the signatory (method of authentication) and indicate consent for the information contained in the said communication;

   “electronic transaction” means a transaction, action or set of actions of either a commercial or non-commercial nature, and includes the provision of information or e-government services;

   “intermediary” in relation to a particular electronic communication, means a person who, on behalf of another person, sends, receives or stores that electronic communication or provides other services with respect to that electronic communication;

   “information system” means a system for generating, sending, receiving, storing or otherwise processing electronic communications;

   “information system services” means providing the connection and network facilities necessary for the transmission, hosting and routing of electronic communications between or among points specified by a user of data of the user’s choosing, without modification to the content of the data sent, stored or received;

   “originator” in relation to an electronic communication means a person or party by whom, or on whose behalf, the electronic communication purports to have been sent or generated prior to storage, if any, but does not include a person or party acting as an intermediary with respect to that electronic communication;

   “secure electronic signature” means a signature duly recognised as such in terms of Part V; and

   “service provider” means a person or party that makes information system services available.

PART II
Legal recognition of Electronic Communications (ss 3-11)

3.   Legal recognition of electronic communications

   Subject to the provisions of this Act, information shall not be denied legal effect, validity or enforcement solely on the grounds that-

   (a)   it is in the form of an electronic communication; or

   (b)   it is not contained in the electronic communication purporting to give rise to such legal effect, but is merely referred to in that electronic communication.

4.   Information required in writing

   (1) Where in any law, a person is required to or permitted to give information in writing, that requirement or permission is met if the information is given in the form of an electronic communication that is accessible for use in any subsequent reference.

   (2) Subsection (1) shall apply irrespective of whether-

   (a)   the requirement is an obligation; or

   (b)   the law which requires the giving of such information also provides consequences for the information not being in writing.

5.   Legal recognition of electronic signatures

   Subject to the provisions of this Act, an electronic signature shall not be denied legal effect, validity or enforcement solely on the grounds that it is in electronic form.

6.   Signatures

   (1) Subject to Part V of this Act, where any law requires the signature of a person, that requirement is met if the signature is given in relation to an electronic communication or transaction and there is a method-

   (a)   which is used to identify that person and to indicate that person’s approval of the information contained in the electronic communication or transaction; or

   (b)   which, having regard to all the relevant circumstances, is as reliable as was appropriate for the purpose for which the electronic communication or transaction was generated or communicated.

   (2)    Subsection (1) shall apply irrespective of whether-

   (a)   the requirement is an obligation; or

   (b)   the law which requires the signature also provides consequences for the absence of a signature.

7.   Requirements for originals

   (1) Where in any law, a person is required to present or retain information in its original form, that requirement shall be satisfied by an electronic communication if-

   (a)   there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as an electronic communication or otherwise as an assessment under subsection (2) may establish; and

   (b)   that information is capable of being displayed to the person to whom it is to be presented.

   (2) For purposes of subsection (1) (a)-

   (a)   the criteria for assessing the integrity of information shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and

   (b)   the standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in light of all the relevant circumstances.

   (3) Subsection (1) shall apply irrespective of whether-

   (a)   the requirement is an obligation; or

   (b)   the law which imposes the requirement also provides consequences for non-compliance.

8.   Admissibility and evidential weight of electronic communications

   (1) Subject to the Electronic Records (Evidence) Act, in any legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of an electronic communication in communications evidence-

   (a)   solely on the ground that it is an electronic communication; or

   (b)   if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

   (2) Information in the form of an electronic communication shall be given due evidential weight.

   (3) In assessing the evidential weight of an electronic communication, regard shall be had to-

   (a)   the reliability of the manner in which the data message was generated, stored or communicated;

   (b)   the reliability of the manner in which the integrity of the electronic communication was

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