BERMUDA_”THE ELECTRONIC TRANSACTIONS ACT 1999″
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Citation
1 This Act may be cited as the Electronic Transactions Act 1999.
Definitions
2 In this Act-
“accredited certificate” means an electronic record that-
(i) associates a signature verification device to a person;
(ii) confirms the identity of that person;
iii) is issued by an authorised certification service provider; and
(iv) meets the relevant criteria;
“addressee” in relation to an electronic record, means a person who is intended by the originator to receive the electronic record, but does not include a person acting as an intermediary with respect to that electronic record;
“authorised certification service provider” means a certification service provider authorised under section 20(2) to provide accredited certificates;
“certification service provider” means a person who issues identity certificates for the purposes of electronic signatures or provides other services to the public related to electronic signatures;
“data controller” means a person who, either alone or jointly or in common with other persons, determines the purposes for which and the manner in which any personal data is, or is to be, processed;
“data processor” means a person who processes personal data on behalf of a data controller;
“e-commerce service provider” means a person who uses electronic means in providing goods, services or information;
“electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
“electronic agent device” means a program, or other electronic or automated means configured and enabled by a person that is used to initiate or respond to electronic records or performance in whole or in part without review by an individual;
“electronic record” means a record created, stored, generated, received or communicated by electronic means;
“electronic signature” means a signature in electronic form in, attached to, or logically associated with, information that is used by a signatory to indicate his adoption of the content of that information and meets the following requirements-
(i) it is uniquely linked to the signatory;
(ii) it is capable of identifying the signatory;
(iii) it is created using means that the signatory can maintain under his sole control; and
(iv) it is linked to the information to which it relates in such a manner that any subsequent alteration of the information is revealed;
“electronic signature product” means hardware or software, or components thereof, that are intended to be used by a certification service provider for the provision of electronic signature services;
“identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physiological, mental, economic, cultural or social identity;
“information” includes data, text, images, sounds, codes, computer programs, software and databases;
“information processing system” means an electronic system for creating, generating, sending, receiving, storing, displaying, or otherwise processing information;
“intermediary” with respect to an electronic record, means a person who, on behalf of another person, sends, receives or stores that electronic record or provides other services with respect to that electronic record;
“Minister” means the Minister responsible for telecommunications and electronic commerce;
“originator” in relation to an electronic record, means a person by whom, or on whose behalf, the electronic record purports to have been sent or generated prior to storage, if any, but does not include a person acting as an intermediary with respect to that electronic record;
“personal data” means any information relating to an identified or identifiable natural person;
“prescribed” means prescribed by regulations under section 32;
“record” means information that is inscribed on a tangible medium or that is stored in an electronic, paper-based or any other medium and is retrievable in perceivable form;
“security procedure” means a procedure, established by law or agreement or knowingly adopted by each party, that is employed for the purpose of verifying that an electronic signature, record or performance is that of a particular person or for detecting changes or errors in the content of an electronic record;
“signature creation device” means unique data, including codes or private cryptographic keys, or a uniquely configured physical device which is used by the signatory in creating an electronic signature;
“signature verification device” means unique data, including codes or public cryptographic keys, or a uniquely configured physical device which is used in verifying an electronic signature;
Crown to be bound
3 (1) This Act binds the Crown.
(2) Notwithstanding subsection (1), nothing in this Act obliges any Government Department to generate, send, receive, store or otherwise process any record by electronic means, but the Minister may, by notice published in the Gazette, indicate that a Government Department will receive and process electronic records relating to such matters as may be specified in the notice.
Objects
4 The objects of this Act are-
(a) to enhance the reputation of Bermuda as an international business centre;
(b) to facilitate electronic transactions on a technology neutral basis by means of reliable electronic records;
(c) to remove uncertainties in relation to conducting transactions electronically with respect to the requirements for documents and for signatures to be in writing;
(d) to promote public confidence in the validity, integrity and reliability of conducting transactions electronically; and
(e) to promote the development of the legal and business infrastructure necessary to implement electronic transactions securely.
Regulatory policy
5 Transactions carried out by electronic means shall be regulated in a manner that-
(a) permits and encourages the growth of business by electronic means through the operation of free market forces;
(b) promotes the greatest possible use of industry self-regulation;
(c) is flexible; and
(d) is technologically neutral.
Exclusions
6 (1) Part II (legal requirements respecting electronic records) and Part III (communication of electronic records) do not apply to any rule of law requiring writing or signatures for the following matters-
(a) the creation, execution or revocation of a will or testamentary instrument;
(b) the conveyance of real property or the transfer of any interest in real property.
(2) The Minister may by regulations provide that this Act, or such provisions thereof as may be specified in the regulations, does not apply to any class of transactions, persons, matters or things specified in the regulations.
Variation by agreement
7 As between parties involved in generating, sending, receiving, storing or otherwise processing records, any provision of Part II (legal requirements respecting electronic records) or Part III (communication of electronic records) may be varied by agreement.
PART II
LEGAL REQUIREMENTS RESPECTING ELECTRONIC RECORDS
Legal recognition of electronic records
8 Information shall not be denied legal effect, validity, admissibility or enforceability solely on the ground that it is-
(a) in the form of an electronic record; or
(b) not contained in the electronic record purporting to give rise to such legal effect, but is referred to in that electronic record.
Writing
9 (1) Where information is required by law to be in writing or is described in any statutory provision as being written, that requirement or description is met by an electronic record if the information contained in the electronic record is accessible and is capable of retention for subsequent reference.
(2) Subsection (1) applies whether the requirement for the information to be in writing is in the form of an obligation or the law provides consequences if it is not in writing.
Delivery
10 (1) Where information is required by law to be delivered, dispatched, given or sent to, or to be served on, a person, that requirement is met by doing so in the form of an electronic record provided that the originator of the electronic record states that the receipt of the electronic record is to be acknowledged and the addressee has acknowledged its receipt.
(2) Subsection (1) applies whether the requirement for delivery, dispatch, giving, sending or serving is in the form of an obligation or the law provides consequences for the information not being delivered, dispatched, given, sent or served.
Signature
11 (1) Where the signature of a person is required by law, that requirement is met by an electronic record if-
(a) a method is used to identify that person and to indicate that the person intended to sign or otherwise adopt the information in the electronic record; and
(b) that method is as reliable as is appropriate for the purpose for which the electronic record was generated or communicated, in the light of all the circumstances, including any relevant agreement.
(2) An electronic record that meets the requirements of subsection (1)(a) and (b) shall not be denied legal effect, validity and enforceability solely on the ground that it-
(a) is not an electronic signature; or
(b) is not associated with an accredited certificate.
(3) Subsection (1) applies whether the requirement for a signature is in the form of an obligation or the law provides consequences for the absence of a signature.
Original form
12 (1) Where information is required by law to be presented or retained in its original form, that requirement is met by an electronic record if-
(a) there exists a reliable assurance as to the integrity of the information from the time it was first generated in its final form as an electronic record or otherwise; and
(b) where it is required that information be presented, that information is capable of being accurately represented to the person to whom it is to be presented.
(2) Subsection (1) applies whether the requirement for the information to be presented or retained in its original form is in the form of an obligation or the law provides consequences if it is not presented or retained in its original form.
(3) For the purposes of subsection (1)(a)-
(a) the criterion for assessing integrity is 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 is to be assessed in the light of the purpose for which the information was generated and all the relevant circumstances.
Retention of electronic records
13 (1) Where certain documents, records or information are required by law to be retained, that requirement is met by retaining electronic records if the following conditions are satisfied-
(a) the information contained in the electronic record is accessible and is capable of retention for subsequent reference;
(b) the electronic record is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and
(c) any information that enables the identification of the origin and destination of an electronic record and the date and time when it was sent or received is retained.
(2) An obligation to retain documents, records or information in accordance with subsection (1) does not extend to any information the sole purpose of which is to enable the message to be sent or received.
(3) A person may satisfy the requirement referred to in subsection (1) by using the services of any other person, if the conditions set out in subsection (1)(a), (b) and (c) are met.
Admissibility and evidential weight of electronic records
14 (1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of an electronic record in evidence-
(a) solely on the ground that it is an electronic record; or
(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the ground that it is not in its original form.
(2) Information in the form of an electronic record will be given due evidential weight and in assessing the evidential weight of an electronic record, regard shall be had to-
(a) the reliability of the manner in which the electronic record was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the information was maintained;
(c) the manner in which the originator was identified; and
(d) any other relevant factor.
(3) This section does not affect the application of sections 27E, 27F, 43A and 43B of the Evidence Act 1905 (which relate to the admissibility of documents produced by computers).
PART III
COMMUNICATION OF ELECTRONIC RECORDS
Formation and validity of contracts
15 (1) In the context of formation of contracts, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed by means of electronic records.
(2) As between the originator and the addressee of an electronic record, a declaration of intention or other statement or delivery of a deed shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record.
Attribution of electronic records
