Electronic Documents

E-Commerce

E-Commerce is business conducted over the internet.  For the most part, the general legal rules apply to E-Commerce.  The law of contract, the Sale of Goods Act and the consumer protection rules apply in the same broad way, as they apply to conventional transactions.

In the early part of the century, a number of pieces of legislation were passed to facilitate and ensure legal recognition for e-business and E-Commerce. As befits a medium that spans borders and allows virtual transactions, the European Union has played a leading role in providing common EU rules for E-Commerce. The EU legislation provides common rules and standards, throughout the Member States.

E-Commerce raises issues that may not arise in conventional face to face transactions.  The buyer and seller will not usually be in real time contact.  They may be in different countries.  The risk of fraud and uncertainty is higher.  Legal issues may arise, as to which country’s laws might apply. States may differ in their laws, as to whether an electronic document or communication is valid in place of a written document.


E-Commerce Act

The E-Commerce Act 2000 derived from an EU Directive.  The legislation was established to clarify the application of existing legal rules to internet and electronic communication transactions.  The fact that it did so in common terms across the European Union was helpful in establishing confidence that each EU State’ would recognise common basic principles.

The E-Commerce Act declared that electronic information is legally valid and is deemed legally effective.  A contract may not be denied validity by being in electronic form. The formation of contracts is subject to the general rules of offer, acceptance, and consideration.  Electronic communications are deemed equivalent to written or oral communications.

Most contracts made over the internet were valid prior to the E-Commerce Act. The Act clarified and confirmed that contracts made over the internet are valid. The E-Commerce legislation did not apply to certain documents which are traditionally in formal written terms.    Land transfers, Wills, trusts, power of attorney and land sale contracts must still be in writing. There is a provision in the legislation, which may be activated in the future.


Written Contracts and Legal Actions may be in Electronic Form

Where a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from the information not being in writing) or permitted to give information in writing, it may be given in electronic form whether as an electronic communication or otherwise.  This covers a wide variety of matters in the administrative and private contractual sphere.  This is subject to the below conditions.

The above provision applies only

  • if at the time the information was given, it is reasonable to expect that it would be readily accessible to the person or public body to whom it is directed for subsequent reference;
  • where the information is required or permitted to be given to a public body or person, and the person or public body consent to the giving of the information in electronic form but requires the information to be given in accordance with particular information technology or to be verified in a particular way, when the requirements have been met (which must be public, objective, transparent, proportionate and non-discriminatory).

Where the information is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body it applies if the person to whom the information is required or permitted to be given consents to the information being given in that form.

This provision does not prejudice any other law requiring or permitting information to be given in accordance with particular information technology and procedural requirements or on a particular data storage device or by means of a particular kind of electronic communication.


Covers a Wider Range of Legal Acts than Signing

The provisions apply to a requirement or permission to give information whether the word “give”, “send”, “forward”, “deliver”, “serve” or similar word or expression is used. Giving information includes

  • make an application,
  • make or lodge a claim,
  • make or lodge a return,
  • make a request,
  • make an unsworn declaration,
  • lodge or issue a certificate,
  • make, vary or cancel an election,
  • lodge an objection,
  • give a statement of reasons,
  • record and disseminate a court order,
  • give, send or serve a notification.

The sender or originator of an electronic communication is the person by whom, or on whose behalf it purports to have been sent or generated. It does not include a person or public body acting as a service provider in relation to the generation, processing, sending and storing of that electronic communication or providing services in relation to it.


Electronic Documents Admissible as Evidence

Documents have always been admissible as evidence, notwithstanding that they are stored electronically or in some non-paper medium. The Electronic Commerce Act makes further detailed provision with respect to the admissibility of electronic documents and electronic signatures.

Electronic documents are admissible as evidence in legal proceedings.  The law of evidence may not deny their admissibility on the sole ground that it is an electronic communication, an electronic form of a document, an electronic contract or writing in electronic form.

A document may not be denied admission where the original cannot be produced, provided that that which is the best evidence that the person or public body producing it could reasonably be expected to obtain, is produced.

An electronic signature is admissible in evidence. It may not be denied admission on the sole ground that it is not an advanced electronic signature, is not based on a qualified certificate, is not issued by an authorised certification service provider or is not created by a secure signature creation device. If the original is not produced, it may not be denied admission on this ground, provided that it is the best evidence that the person or public body producing it, could reasonably be expected to obtain.


Excluded Categories of Contract

The Electronic Commerce Directive allows States to exclude the following categories of contract;

  • contracts that create or  transfer rights in real estate except for rental rights;
  • contracts which require by law, the involvement of courts, public authorities or professions exercising public authority;
  • contracts of suretyship granted and collateral securities given by persons acting outside their trade, business or profession;
  • contracts governed by family law or the law of succession.

The above exemptions must be reviewed every five years and a report is made to the Commission.

The Directive on electronic signatures is not applicable to contracts or obligations where the requirements as regard form are prescribed by national or community law.  In Ireland, this would include statutory declarations and affidavits. In continental Europe, it would cover notarised documents. The Irish legislation specifically excludes wills, trusts and enduring powers of attorney.

The Minister may by regulations, remove items excluded from the legislation, where technology has advanced and access to it is widely available, where adequate procedures and practice has developed in public registration or other services, or where the public interest so requires. The variations may be permanent or may be made on a trial basis.


Electronic Signatures I

An electronic signature is data in an electronic form which is attached to or associated with other electronic data and is intended to serve as a method of authentication.  Where a name is specifically typed into the body of an email it can potentially act as equivalent to a signature.  T

he key issue is whether it is intended to authenticate the communication as that of the sender.  In most circumstances, this will satisfy legal requirements for signature or authentication.  An automatically generated signature may not be sufficient to authenticate a document.

An electronic signature may authenticate a document. Provided that a name or signature is attached to or associated with online document in a way that is intended to authenticate its creator, this will generally have the same legal effect as a signature. For example, a scanned signature or even a name at the end of an e-mail will generally be equivalent to a signature on an order form.

In practice, e-commerce retailers use further methods of authentication, such as passwords and encryption techniques. They have an incentive to do so as they usually carry the risk of loss in the event of fraud.


Electronic Signatures

The Irish legislation does not yet apply to property transfers, leases, trusts, wills and most guarantees. They still require written signatures and witnesses. This may change in the future.

The E-Commerce Act contemplated that a system of unique “advanced electronic signatures” would develop for use in more formal documents and settings. The Directive contemplated certification service providers who would issue certificates to confirm the identity of a person or public body.

In practice, advanced electronic signatures have been slow to take off.  Various sectors such as the banking sector have found other means of authentication, such as passwords etc.  Advanced electronic signatures are now increasingly used for secure channels, such as for certain Revenue and Companies Registration Office returns.


Public Body Records I

Where a person or public body is required (whether the requirement is in the form of an obligation or if consequences flow from the information not being presented or retained in its original form) or are permitted to present or retain information in its original form, then the information may be presented or retained, whether as an electronic communication or otherwise.

Where the body is required to or permitted to retain documents for a particular period in hard form, it may retain the documents in electronic form.  This is subject to the following conditions

  • there exists reliable assurance as to the integrity of the information from the time when it was first generated in final form, whether as an electronic communication or otherwise;
  • where it is required or permitted that the information be presented, the information must be capable of being displayed in intelligible form to a person or public body to whom it is presented;
  • if at the time the information was generated in final form, it is reasonable to expect that it will be readily accessible so as to be usable for subsequent reference;
  • where the information is required or permitted to be presented or retained for a public body, that body consents to the information being so presented or retained in electronic form, provided that it may be required to be presented in accordance with particular information technology requirement (which must be objective, transparent, proportionate and non-discriminatory);
  • where the information is required or permitted to be presented or retained for a person or company, that the person or company consents to the information being retained and presented in that form.

Public Body Records II

Information has the requisite integrity and reliability by reference to whether it has remained complete, unaltered, apart from the addition of any endorsement or change which arises in the normal course of generating, communicating, processing, sending, receiving, recording, storing or displaying.

This is without prejudice to any other law requiring or permitting information to be presented and retained in accordance with particular information technology and procedural requirements on a particular type of data storage device or by means of a particular kind of electronic information.


Clarifying Extent of Act

The Act is not to be interpreted as

  • 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
  • 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 document

The Act is not to be interpreted as requiring the disclosure or enabling the seizure of unique data such as codes, passwords, algorithms, cryptographic keys or other data which may be necessary to render information or an electronic communication intelligible.


References and Sources

Legislation

Electronic Commerce Act 2000

Electronic Commerce Act, 2000 (Commencement) Order 2000, S.I. No. 293 of 2000

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004,

European Communities (Distance Marketing of Consumer Financial Services) (Amendment)

Regulations 2005, S.I. No. 63 of 2005

European Communities (Protection of Consumers in Respect of Contracts Made by Means of

Distance Communication) (Amendment) Regulations 2005, S.I. No. 71 of 2005

European Communities (Protection of Consumers in Respect of Contracts made by Means of

Distance Communication) (Amendment) Regulations 2010, S.I. No. 370 of 2010

Electronic Commerce (Certification Service Providers Supervision Scheme) Regulations 2010, S.I. No. 233 of 2010

European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011, S.I. No. 336 of 2011

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment)

Regulations 2014, S.I. No. 250 of 2014

European Union (Consumer Information, Cancellation and Other Rights) (Amendment)

Regulations 2016, S.I. No. 336 of 2016

EU Legislation

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)

Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR)

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR)

Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European

Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004

Irish Books

EU Data Protection Law Kelleher & Murray           2018

Information & Technology Communications Law Kennedy & Murphy         2017

Social Networking           Lambert               2014

Law Society PPG Hyland Technology & Intellectual Property Law                 2008

Information Technology Law in Ireland   2 Kelleher & Murray       2007

Data Protection Law in Ireland: Sources & Issues 2 Lambert 2016

Privacy & Data Protection Law in Ireland                Kelleher               2015

Data Protection: A Practical Guide to Irish & EU Law         Carey    2010

Practical Guide to Data Protection Law in Ireland A&L Goodbody 2003

Contract Law in an Electronic Age Haigh 2001

Contract law McDermott 2nd ed 2017

EU and UK Texts

Cover of Getting the Deal Through: e-Commerce 2018 Robert Bond 2017

EU Regulation of e-Commerce: A Commentary Edited by: Arno R. Lodder, Andrew D. Murray 2017

Butterworths E-Commerce and IT Law Handbook 6th ed Jeremy Phillips 2012

Internet & E-commerce Law, Business and Policy Internet & E-commerce Law, Business and Policy 2nd ed Brian Fitzgerald, Anne Fitzgerald, Gaye Middleton, Yee Fen Lim, Timothy B Beale 2011

E-Commerce and Convergence: A Guide to the Law of Digital Media E-Commerce and Convergence: 4th ed Edited by: Mike Butler 2011

Blackstone’s Statutes on IT and e-commerce Blackstone’s Statutes on IT and e-commerce 4th ed Edited by: Steve Hedley, Tanya Aplin 2008

E-Commerce Law E-Commerce Law Paul Todd 2005

A Practical Guide to E-Commerce and Internet Law 2nd ed Osborne Clarke 2005