The Electronic Commerce Act, 2000 might strike you as exciting as a wet weekend in Mullingar.
Do you have an electronic signature at the end of your emails? Or an advanced electronic signature?
Do you know the difference? And the significance?
Have you ever worried about unwittingly entering into a contract after hitting “send”?
The Electronic Commerce Act, 2000 implements EU directives on electronic signatures and some provisions coveing electronic commerce. (This piece should be read in conjunction with the piece on the Electronic Commerce Regulations, 2003.)
This act does not apply to the sale of land or wills/trusts which must still be evidenced in writing.
And it makes a distinction between electronic signatures and advanced electronic signatures.
This act also recognises that electronic communications, signatures and contracts cannot be denied legal effect simply because they are in this form. However the parties must consent to the information being provided in electronic form for it to have full legal recognition.
1. Electronic signature
An electronic signature is defined in the Electronic Commerce Act, 2000 as
“electronic signature” means data in electronic form attached to, incorporated in or logically associated with other electronic data and which serves as a method of authenticating the purported originator, and includes an advanced electronic signature;
This can include your name typed at the end of an email or a scanned version of a handwritten signature.
Generally this type of signature has the same effect as a hand written signature.
2. Advanced electronic signature
An advance electronic signature is defined as:
“advanced electronic signature” means an electronic signature— (a) uniquely linked to the signatory, (b) capable of identifying the signatory, (c) created using means that are capable of being maintained by the signatory under his, her or its sole control, and (d) linked to the data to which it relates in such a manner that any subsequent change of the data is detectable;
This is uniquely linked to the signatory, created by means under the sole control of the signatory and linked to the data in such a way that any subsequent change of the data is detectable.
3. Certification Service Providers
The Electronic Commerce Act, 2000 also deals with certification service providers in Part 3 of the Act.
Unusually the act allows certification services to act without prior authorisation.
4. Electronic Originals
Section 17 of the Act allows the retention and presentation of electronic forms of “original” information provided certain requirements are met.
(2) Information may be presented or retained as provided in subsection (1) only— (a) if there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, whether as an electronic communication or otherwise, (b) where it is required or permitted that the information be presented— if the information is capable of being displayed in intelligible form to a person or public body to whom it is to be presented, (c) if, at the time the information was generated in its final form, it was reasonable to expect that it would be readily accessible so as to be useable for subsequent reference, (d) where the information is required or permitted to be presented to or retained for a public body or for a person acting on behalf of a public body, and the public body consents to the information being presented or retained in electronic form, whether as an electronic communication or otherwise, but requires that it be presented or retained in accordance with particular information technology and procedural requirements— if the public body’s requirements have been met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and (e) where the information is required or permitted to be presented to or retained for a person who is neither a public body nor acting on behalf of a public body— if the person to whom the information is required or permitted to be presented or for whom it is required or permitted to be retained consents to the information being presented or retained in that form.
5. Electronic Contracts
Section 19 confirms that an electronic contract shall not be denied legal effect solely on the grounds that it has been concluded electronically or by electronic communication.
Contracts. 19.—(1) An electronic contract shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, or has been concluded wholly or partly by way of an electronic communication. (2) In the formation of a contract, an offer, acceptance of an offer or any related communication (including any subsequent amendment, cancellation or revocation of the offer or acceptance of the offer) may, unless otherwise agreed by the parties, be communicated by means of an electronic communication.
Section 23 provides that
23.—All provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically.
So, the Electronic Commerce Act, 2000 may play a bigger role in your business activity than you thought.
And a weekend in Mullingar is not so boring either.
By Terry Gorry