Contract Formation
Electronic Commerce Act, 2000
AN ACT TO PROVIDE FOR THE LEGAL RECOGNITION OF ELECTRONIC CONTRACTS, ELECTRONIC WRITING, ELECTRONIC SIGNATURES AND ORIGINAL INFORMATION IN ELECTRONIC FORM IN RELATION TO COMMERCIAL AND NON-COMMERCIAL TRANSACTIONS AND DEALINGS AND OTHER MATTERS, THE ADMISSIBILITY OF EVIDENCE IN RELATION TO SUCH MATTERS, THE ACCREDITATION, SUPERVISION AND LIABILITY OF CERTIFICATION SERVICE PROVIDERS AND THE REGISTRATION OF DOMAIN NAMES, AND TO PROVIDE FOR RELATED MATTERS.
[10th July, 2000]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary And General
Short title and commencement.
1.—(1) This Act may be cited as the Electronic Commerce Act, 2000.
(2) This Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Enterprise, Trade and Employment, may appoint by order or orders, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions.
Interpretation.
2.—(1) In this Act, unless the context otherwise requires—
“accreditation” means an accreditation under section 29 (2);
“addressee”, in relation to an electronic communication, means a person or public body intended by the originator to receive the electronic communication, but does not include a person or public body acting as a service provider in relation to the processing, receiving or storing of the electronic communication or the provision of other services in relation to it;
“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;
“certificate” means an electronic attestation which links signature verification data to a person or public body, and confirms the identity of the person or public body;
“certification service provider” means a person or public body who issues certificates or provides other services related to electronic signatures;
“Directive” means the European Parliament and Council Directive 1999/93/EC of 13 December, 19991 ;
“electronic” includes electrical, digital, magnetic, optical, electro-magnetic, biometric, photonic and any other form of related technology;
“electronic communication” means information communicated or intended to be communicated to a person or public body, other than its originator, that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means or in electronic form, but does not include information communicated in the form of speech unless the speech is processed at its destination by an automatic voice recognition system;
“electronic contract” means a contract concluded wholly or partly by means of an electronic communication;
“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;
“excluded law” means a law referred to in section 10 ;
“information” includes data, all forms of writing and other text, images (including maps and cartographic material), sound, codes, computer programmes, software, databases and speech;
“information system” means a system for generating, communicating, processing, sending, receiving, recording, storing or displaying information by electronic means;
“legal proceedings” means civil or criminal proceedings, and includes proceedings before a court, tribunal, appellate body of competent jurisdiction or any other body or individual charged with determining legal rights or obligations;
“Minister” means the Minister for Public Enterprise;
“originator”, in relation to an electronic communication, means the person or public body by whom or on whose behalf the electronic communication purports to have been sent or generated before storage, as the case may be, but does not include a person or public body acting as a service provider in relation to the generation, processing, sending or storing of that electronic communication or providing other services in relation to it;
“person” does not include a public body;
“prescribed” means prescribed by regulations made under section 3 ;
“public body” means—
(a) a Minister of the Government or a Minister of State,
(b) a body (including a Department of State but not including a non-government organisation) wholly or partly funded out of the Central Fund or out of moneys provided by the Oireachtas or moneys raised by local taxation or charges, or
(c) a commission, tribunal, board or body established by an Act or by arrangement of the Government, a Minister of the Government or a Minister of State for a non-commercial public service or purpose;
“qualified certificate” means a certificate which meets the requirements set out in Annex I and is provided by a certification service provider who fulfils the requirements set out in Annex II;
“secure signature creation device” means a signature creation device which meets the requirements set out in Annex III;
“signatory” means a person who, or public body which, holds a signature creation device and acts in the application of a signature by use of the device either on his, her or its own behalf or on behalf of a person or public body he, she or it represents;
“signature creation data” means unique data, such as codes, passwords, algorithms or private cryptographic keys, used by a signatory or other source of the data in generating an electronic signature;
“signature creation device” means a device, such as configured software or hardware used to generate signature creation data;
“signature verification data” means data, such as codes, passwords, algorithms or public cryptographic keys, used for the purposes of verifying an electronic signature;
“signature verification device” means a device, such as configured software or hardware used to generate signature verification data.
(2) In the application of this Act, “writing”, where used in any other Act or instrument under an Act (and whether or not qualified by reference to it being or being required to be under the hand of the writer or similar expression) shall be construed as including electronic modes of representing or reproducing words in visible form, and cognate words shall be similarly construed.
(3) In this Act—
(a) a reference to a section is a reference to a section of this Act, unless it is indicated that a reference to some other enactment is intended,
(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference is made, unless it is indicated that a reference to some other provision is intended,
(c) a reference to an enactment shall, except to the extent that the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, and
(d) a reference to an Annex by number is a reference to the Annex so numbered to the Directive and included in the Schedule to this Act.
(4) Where in any legal proceedings the question of whether—
(a) a body is a non-government organisation, or
(b) a body, commission, tribunal or board is or was established by an Act or by arrangement of the Government, a Minister of the Government or a Minister of State for a non-commercial service or purpose,
is in issue then, for the purpose of establishing whether it is or is not a public body as defined in subsection (1), a document signed by the Minister, a Minister of the Government or a Minister of State declaring that—
(i) he or she is the appropriate Minister for determining whether the body is or is not a non-government organisation, and that in fact it is or is not such an organisation, or
(ii) he or she is the appropriate Minister for determining whether the body, commission, tribunal or board was or was not so established for a non-commercial service or purpose, and that in fact it was or was not so established,
is sufficient evidence of those facts, until the contrary is shown, and the Minister, Minister of the Government or Minister of State may make such a declaration.
Signatures.
13.—(1) If by law or otherwise the signature of a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from there being no signature) or permitted, then, subject to subsection (2), an electronic signature may be used.
(2) An electronic signature may be used as provided in subsection (1) only—
(a) where the signature is required or permitted to be given to a public body or to a person acting on behalf of a public body and the public body consents to the use of an electronic signature but requires that it be in accordance with particular information technology and procedural requirements (including that it be an advanced electronic signature, that it be based on a qualified certificate, that it be issued by an accredited certification service provider or that it be created by a secure signature creation device)— 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
(b) where the signature is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body— if the person to whom the signature is required or permitted to be given consents to the use of an electronic signature.
(3) Subsections (1) and (2) are without prejudice to any other provision of this Act or law requiring or permitting an electronic communication to contain an electronic signature, an advanced electronic signature, an electronic signature based on a qualified certificate, an electronic signature created by a secure signature creation device or other technological requirements relating to an electronic signature.
Signatures required to be witnessed.
14.—(1) If by law or otherwise a signature to a document is required to be witnessed (whether the requirement is in the form of an obligation or consequences flow from the signature not being witnessed) that requirement is taken to have been met if—
(a) the signature to be witnessed is an advanced electronic signature, based on a qualified certificate, of the person or public body by whom the document is required to be signed,
(b) the document contains an indication that the signature of that person or public body is required to be witnessed, and
(c) the signature of the person purporting to witness the signature to be witnessed is an advanced electronic signature, based on a qualified certificate.
(2) An advanced electronic signature based on a qualified certificate may be used as provided in subsection (1) only—
(a) where the signature required or permitted to be witnessed is on a document to be given to a public body or to a person acting on behalf of a public body and the public body consents to the use of an electronic signature of both the person attesting the document and witnessing the signature but requires that the document and signatures be in accordance with particular information technology and procedural requirements (including that a qualified certificate on which the signature or signatures are based be issued by an accredited certification service provider)— if the public body’s requirements are met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and
(b) where the document on or in respect of which the signature is to be witnessed is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body— if the person to whom it is required or permitted to be given consents to the use of an advanced electronic signature based on a qualified certificate for that purpose.
Consumer law to apply.
15.—All electronic contracts within the State shall be subject to all existing consumer law and the role of the Director of Consumer Affairs in such legislation shall apply equally to consumer transactions, whether conducted electronically or non-electronically.
Documents under seal.
16.—(1) If by law or otherwise a seal is required to be affixed to a document (whether the requirement is in the form of an obligation or consequences flow from a seal not being affixed) then, subject to subsection (2), that requirement is taken to have been met if the document indicates that it is required to be under seal and it includes an advanced electronic signature, based on a qualified certificate, of the person or public body by whom it is required to be sealed.
(2) An advanced electronic signature based on a qualified certificate may be used as provided in subsection (1) only—
(a) where the document to be under seal is required or permitted to be given to a public body or to a person acting on behalf of a public body and the public body consents to the use of an electronic signature but requires that it be in accordance with particular information technology and procedural requirements (including that a qualified certificate on which it is based be issued by an accredited certification service provider)— 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
(b) where the document to be under seal is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body— if the person to whom it is required or permitted to be given consents to the use of an advanced electronic signature based on a qualified certificate.
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.
Acknowledgement of receipt of electronic communications.
20.—(1) Subject to any other law, where the originator of an electronic communication indicates that receipt of the electronic communication is required to be acknowledged but does not indicate a particular form or method of acknowledgement, then, unless the originator and the addressee of the electronic communication agree otherwise, the acknowledgement shall be given by way of an electronic communication or any other communication (including any conduct of the addressee) sufficient to indicate to the originator that the electronic communication has been received.
(2) Where the originator of an electronic communication indicates that receipt of the electronic communication is required to be acknowledged, the electronic communication, in relation to the establishing of legal rights and obligations between parties, shall, until the acknowledgement is received by the originator and unless the parties otherwise agree, be treated as if it had never been sent.
(3) Where the originator of an electronic communication has indicated that receipt of the electronic communication is required to be acknowledged but has not stated that the electronic communication is conditional on the receipt of acknowledgement and the acknowledgement has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed, within a reasonable time, then the electronic communication, in relation to the establishing of legal rights and obligations between parties, shall, unless the parties otherwise agree, be treated as if it had never been sent.
Time and place of dispatch and receipt of electronic communications.
21.—(1) Where an electronic communication enters an information system, or the first information system, outside the control of the originator, then, unless otherwise agreed between the originator and the addressee, it is taken to have been sent when it enters such information system or first information system.
(2) Where the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee or the law otherwise provides, the electronic communication is taken to have been received when it enters that information system.
(3) Where the addressee of an electronic communication has not designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee, the electronic communication is taken to have been received when it comes to the attention of the addressee.
(4) Subsections (1), (2) and (3) apply notwithstanding that the place where the relevant information system is located may be different from the place where the electronic communication is taken to have been sent or received, as the case may be, under those subsections.
(5) Unless otherwise agreed between the originator and the addressee of an electronic communication, the electronic communication is taken to have been sent from and received at, respectively, the place where the originator and the addressee have their places of business.
(6) For the purposes of subsection (5), but subject to subsection (7)—
(a) if the originator or addressee has more than one place of business, the place of business is the place that has the closest relationship to the underlying transaction or, if there is no underlying transaction, the principal place of business, and
(b) if the originator or addressee does not have a place of business, the place of business is taken to be the place where he or she ordinarily resides.
(7) If an electronic communication is or is in connection with a notification or other communication required or permitted by or under an Act to be sent or given to, or served on, a company at its registered office, the registered office is taken to be the place of business of the company in connection with that electronic communication for the purpose of subsection (5).
Admissibility.
22.—In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to deny the admissibility in evidence of—
(a) an electronic communication, an electronic form of a document, an electronic contract, or writing in electronic form—
(i) on the sole ground that it is an electronic communication, an electronic form of a document, an electronic contract, or writing in electronic form, or
(ii) if it is the best evidence that the person or public body adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form,
or
(b) an electronic signature—
(i) on the sole ground that the signature is in electronic form, or is not an advanced electronic signature, or is not based on a qualified certificate, or is not based on a qualified certificate issued by an accredited certification service provider, or is not created by a secure signature creation device, or
(ii) if it is the best evidence that the person or public body adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
Defamation law to apply.
23.—All provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically.
General
Electronic form not required.
24.—Nothing in this Act shall be construed as—
(a) requiring a person or public body to generate, communicate, produce, process, send, receive, record, retain, store or display any information, document or signature by or in electronic form, or
(b) prohibiting a person or public body engaging in an electronic transaction from establishing reasonable requirements about the manner in which the person will accept electronic communications, electronic signatures or electronic forms of documents.