Electronic
Communications (Jersey) Law 2000
A LAW to facilitate electronic
business and the use of electronic communications and electronic storage, and
to make other provisions in similar respects
Commencement [see endnotes]
PART
1
INTERPRETATION
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“company” means a body corporate (other than a limited
liability company registered as a body corporate under the Limited Liability Companies
(Jersey) Law 2018) incorporated with or without limited liability in any part of the
world, and includes any similar or equivalent structure or arrangement howsoever
called;
“consent” includes consent that can reasonably be
inferred from the conduct of the person concerned;
“data storage device” means any article or material (for
example, a disk) from which information is capable of being reproduced, with or
without the aid of any other article or device;
“document” includes a map, plan, design, drawing,
picture or other image whether on paper or other material;
“electronic” includes electrical, digital, magnetic,
electromagnetic, or any other technology that entails capabilities similar to
those technologies;
“electronic communication” means a communication of
information transmitted –
(a) by
means of guided or unguided electromagnetic energy or of both; or
(b) by
other means but while in electronic form,
and a reference to an electronic communication includes a reference
to an electronic record;
“electronic record” means information generated,
communicated, received or stored by electronic means in an information system;
“electronic signature” means a signature in electronic
form attached to or logically associated with an electronic communication or
electronic record;
“electronic storage” means storage of an electronic
record;
“enactment” includes an enactment enacted after the date
of this enactment;
“handle”, in relation to an electronic communication,
means to dispatch, receive, store or otherwise process the communication;
“information” includes data, text, sounds, images,
codes, computer programs, software and databases;
“information system” means a system designed to
generate, dispatch, receive, store or otherwise process information;
“information technology requirements” includes software
requirements;
“intermediary”, in respect of an electronic
communication or electronic record, means a person who, on behalf of another person,
handles the electronic communication or electronic record or provides other
services with respect to the electronic communication or electronic record;
“Minister” means the Minister for Sustainable Economic
Development;[1]
“modification” includes an alteration, addition or
omission;
“non-profit body” means a body that is carrying on an
operation or activity that is not for the purpose of profit or gain to its
individual members and is, by the terms of its constitution, prohibited from
making a distribution, whether in money, property or otherwise, to its members;
“originator”, in respect of an electronic communication
or an electronic record, means a person by whom or on whose behalf the
electronic communication or electronic record purports to have been dispatched
or generated but does not include a person acting as an intermediary with
respect to the electronic communication or electronic record;
“place of business”, in respect of a States entity, a
government, an authority of a government or a non-profit body, means a place
where any operations or activities are carried out by that States entity, that
government, authority or body;
“prescribed” means prescribed by the Minister by Order;
“service provider” means –
(a) a person
who owns or operates an information system by means of which, on behalf of
another, the person handles electronic communications; and
(b) an
employee or agent of a person referred to in sub-paragraph (a) acting in
the course of the person’s employment or agency;
“signature” or “signed” includes any symbol
executed or adopted, or any security procedure employed or adopted, using
electronic means or otherwise by or on behalf of a person with intent to
authenticate an electronic communication or electronic record;
“States entity” means –
(a) an
administration of the States;
(b) an
officer of the States or a States’ employee within the meaning of Article 2
of the Employment of States of Jersey
Employees (Jersey) Law 2005;
(c) a person
who holds or performs the duties of an office under an enactment;
(d) an
authority of the States created by an Act of the States or an enactment;
(e) an
employee or officer of such an authority; or
(f) a
parish or an employee or officer of a parish.[2]
(2) In this Law a reference
to the integrity of information is a reference to whether there has been any
tampering with or modification of the information apart from –
(a) the
addition of an endorsement; or
(b) an immaterial
change,
that arises in the normal course of handling by an information
system.
(3) A reference in this Law
to something’s being put into a legible form includes a reference to its
being restored to the condition in which it was before any encryption or
similar process was applied to it.
2 Power
for Regulations to modify legislation[3]
(1) The States may make
Regulations amending or extending the interpretation of any expression defined
in this Law or defining any expression used in this Law if the States considers
it necessary to do so to take into account a change or advancement in
technology.
(2) The States may by
Regulations modify the provisions of –
(a) any
enactment; or
(b) any
scheme, licence, authorization or approval issued, granted or given by or under
any enactment,
in such manner as they may think fit for the purpose of authorizing
or facilitating the use of electronic communications or electronic storage
(instead of other forms of communication or storage) for any purpose mentioned
in paragraph (3).
(3) Those purposes are –
(a) the
doing of anything which under any such provisions is required to be or may be
done by post or other specified means of delivery;
(b) the
doing of anything which under any such provisions is required to be or may be
authorized by a person’s signature or seal, or is required to be
witnessed;
(c) the
making of any statement or declaration which under any such provisions is
required to be made under oath or to be contained in a statutory declaration;
(d) the
keeping, maintenance or preservation, for the purposes or in pursuance of any
such provisions, of any account, record, notice, instrument or other document;
(e) the
provision, production or publication under any such provisions of any
information or other matter;
(f) the
making of any payment that is required to be or may be made under any such
provisions.[4]
(4) The power to make
Regulations under this Article includes, in particular, the power to provide
for –
(a) the
electronic form to be taken by any electronic communications or electronic
storage the use of which is authorized by the Regulations;
(b) the
conditions subject to which the use of electronic communications or electronic
storage is so authorized;
(c) in
relation to cases in which any such conditions are not satisfied, for treating
anything for the purposes of which the use of such communications or storage is
so authorized as not having been done;
(d) in
connection with anything so authorized, a person to be able to refuse to accept
receipt of something in electronic form except in such circumstances as may be
specified in or determined under the Regulations;
(e) in
connection with any use of electronic communications so authorized,
intermediaries to be used, or to be capable of being used, the transmission of
any data or for establishing the authenticity or integrity of any data;
(f) in
connection with any use of electronic storage so authorized, persons satisfying
such conditions as may be specified in or determined under the Regulations to carry
out functions in relation to the storage;
(g) in
relation to cases in which the use of electronic communications or electronic
storage is so authorized, the determination of any of the matters mentioned in paragraph (5),
or as to the manner in which they may be proved in legal proceedings;
(h) in
relation to cases in which fees or charges are or may be imposed in connection
with anything for the purposes of which the use of electronic communications or
electronic storage is so authorized, different fees or charges to apply where
use is made of such communications or storage;
(i) in relation to any criminal or other liabilities that may arise (in
respect of the making of false or misleading statements or otherwise) in
connection with anything for the purposes of which the use of electronic
communications or electronic storage is so authorized, corresponding
liabilities to arise in corresponding circumstances where use is made of such
communications or storage;
(j) persons to prepare and keep records in connection with any use of
electronic communications or electronic storage which is so authorized;
(k) the
production of the contents of any records kept in
accordance with the Regulations;
(l) a requirement imposed by virtue of sub-paragraph (j) or (k) to be
enforceable at the suit or instance of such person as may be specified in or
determined in accordance with the Regulations.
(5) The matters referred to
in paragraph (4)(g) are –
(a) whether
a thing has been done using an electronic communication or electronic storage;
(b) the
time at which, or date on which, a thing done using any such communication or
storage was done;
(c) the
place where a thing done using such communication or storage was done;
(d) the
person by whom such a thing was done; and
(e) the
contents, authenticity or integrity of any electronic data.
(6) Regulations under this
Article may –
(a) provide
for any conditions or requirements imposed by the Regulations to be framed by
reference to the directions of such persons as may be specified in or
determined in accordance with the Regulations;
(b) provide
that any such condition or requirement is to be satisfied only where a person
so specified or determined is satisfied as to specified matters; and
(c) make
such incidental, supplemental, consequential and transitional provision as the
States think fit,
and
the provision that may be made by virtue of sub-paragraph (c) includes
provision modifying any enactment or any scheme, licence, authorization or
approval issued, granted or given by or under any enactment.
PART 2
GENERAL PRINCIPLES
3 Legal recognition
Information shall not be denied legal effect, validity or
enforceability, solely on the grounds that it is in electronic form.
4 Formation of contract
(1) In the formation of a
contract, unless the parties have otherwise agreed, the offer and the
acceptance of the offer may be expressed by means of an electronic
communication.
(2) Paragraph (1) does
not apply where the law expressly or impliedly otherwise provides.
5 Time of dispatch of electronic communications
Unless otherwise agreed between the originator of the electronic
communication and its addressee, the dispatch of an electronic communication
occurs when it enters an information system outside the control of its
originator or a person dispatching the electronic communication on behalf of
its originator.
6 Time of receipt of electronic communications
Unless otherwise agreed between the originator of the electronic
communication and its addressee, the time of receipt of an electronic communication
is –
(a) if its addressee has
designated an information system to receive the electronic communication, when
it enters that information system; and
(b) in any other case, when it is retrieved by the addressee.
7 Place of dispatch and receipt of electronic communications
(1) Unless otherwise agreed
between the originator of the electronic communication and its addressee, an
electronic communication is to be taken –
(a) to
have been dispatched at the place where its originator has the originator’s
place of business; and
(b) to
have been received at the place where its addressee has the addressee’s
place of business.
(2) For the purposes of
applying paragraph (1) to an electronic communication –
(a) if
its originator or addressee has more than one place of business, and one of
those places has a closer relationship to the underlying transaction, it is to
be assumed that that place of business is the originator’s or
addressee’s only place of business;
(b) if
its originator or addressee has more than one place of business, but paragraph (a)
does not apply, it is to be assumed that the originator’s or
addressee’s principal place of business is the originator’s or
addressee’s only place of business; and
(c) if
its originator or addressee does not have a place of business, it is to be
assumed that the originator’s or addressee’s place of business
is –
(i) the place where
the originator or addressee ordinarily resides, or
(ii) in
the case of a company, its registered or similar address.
8 Attribution of electronic communications
(1) An electronic
communication is that of its originator if it was dispatched –
(a) by
its originator;
(b) by a person
who had the authority to act on behalf of its originator in respect of the
communication; or
(c) by an
information system programmed by or on behalf of its originator to operate
automatically.
(2) An addressee of an
electronic communication may assume that a particular person was its originator
and may act on that assumption if –
(a) the
addressee properly applied a procedure previously agreed with that person to
ascertain whether the communication was from that person and the procedure
indicated that it was; or
(b) the
communication as received by the addressee was the result of the action of a person
whose relationship with the particular person or the person’s agent
enabled the person to gain access to a method used by the particular person to
identify the person as the originator of electronic communications.
(3) Paragraph (2) does
not apply –
(a) from
the time when the addressee –
(i) receives notice
from the person assumed to be the originator of the electronic communication
that the person was not its originator, and
(ii) has
had a reasonable time to act on that information;
(b) in
the case of paragraph (2)(b), at any time when the addressee knew or ought
to have known had the person exercised reasonable care or used an agreed
procedure that the person assumed to be the originator of the electronic
communication was not its originator; or
(c) if in
the circumstances it would be unconscionable for the addressee to regard the person
assumed to be the originator of the electronic communication to be its
originator and to act on that assumption.
(4) Where paragraph (1)
or (2) applies the addressee is entitled to assume that the electronic
communication received was what its originator intended to dispatch, and to act
on that assumption.
(5) Paragraph (4) does
not apply if the addressee knew or ought to have known had the addressee
exercised reasonable care or used an agreed procedure that the transmission of
the electronic communication resulted in the communication as received being
different from the communication as dispatched.
(6) An addressee is
entitled to assume that each electronic communication the addressee receives is
a separate communication unless the addressee knew or could have known had he
or she exercised reasonable care or used an agreed procedure that an electronic
communication the addressee has received is a duplicate of one already
received.
(7) Nothing in this Article
affects the law of agency or the law on the formation of contracts.
9 Admissibility in evidence of information in electronic form
(1) In legal proceedings
nothing in the application of the rules of evidence shall be taken to apply so
as to deny the admissibility into evidence of information that is in electronic
form –
(a) solely
on the grounds that it is in electronic form; or
(b) if it
is the best evidence that the person adducing it could reasonably be expected
to obtain, solely on the grounds that it is not in its original form or that it
is not an original.
(2) Evidence in electronic
form shall be given due evidential weight by the court.
(3) When assessing the
evidential value of information in electronic form the court may have regard to
any relevant information or circumstances including –
(a) the
manner in which the information was generated and stored;
(b) the
reliability of the manner in which its integrity was maintained; and
(c) the
manner in which its originator was identified or the information was signed or
otherwise accredited or authenticated.
9A Validity
of electronic signatures[5]
A signature, seal, attestation or notarisation is not to be denied
legal effect, validity or enforceability only because it is in electronic form.
PART 2A[6]
Electronic signatures
9B Remote witnessing of
signatures
(1) A requirement, whether
under an enactment or otherwise, that the signature of a person on a document
must be witnessed may, in addition to any other lawful means of witnessing that
signature, be satisfied if –
(a) at
the time the document is signed, the person who signs the document (the
signatory) and the person who witnesses the signature (the witness) are able to
see one another by means of an audio-visual link; and
(b) either
paragraph (2) or (3) applies.
(2) This paragraph applies
if –
(a) by
means of that link, the witness positively identifies the signatory and sees
the signatory sign the document;
(b) the
signatory sends an electronic copy of the document to the witness; and
(c) the
witness signs the document attesting to the signature of the signatory on the
document.
(3) This paragraph applies
if –
(a) at
the time the document is signed the signatory and the witness are also in
communication by any other electronic means;
(b) the
signatory and the witness can both see the document;
(c) the
signatory makes his or her electronic signature on or in relation to the
document; and
(d) the
witness signs the document attesting to the signature of the signatory on the
document.
(4) Despite paragraphs (2)(c)
and (3)(d), a person who has witnessed electronically the signature of a
signatory to a document may at any time make a declaration in writing attesting
to that fact.
9C Authority to
attach electronic signature for another
(1) This Article applies
where a person is required or authorised to sign a document.
(2) The person (A) may
authorise another person to attach A’s
electronic signature to the document on A’s behalf.
(3) Paragraph (2)
applies despite any rule or presumption relating to –
(a) agency;
(b) delegation.
(4) In the case of a
signature required or authorised to be provided to a States entity or to a
person acting on behalf of a States entity, despite paragraph (2), the
entity may require that the signature is attached by –
(a) a
specified individual;
(b) an
individual of a specified description.
(5) This Article does not
apply to the signature of a Minister required for the purpose of making Jersey
subordinate legislation (within the meaning of the Legislation (Jersey)
Law 2021).
9D Power
to exclude application of Articles 9B and 9C
The Minister may by Order provide that Article 9B or 9C does
not apply to such cases or in such circumstances as are specified in the Order.
PART 3
REQUIREMENTS UNDER ENACTMENTS
10 Exemptions[7]
(1) The Minister may by Order
provide that a relevant provision –
(a) does
not apply to a specified enactment or to a specified class of enactments; or
(b) does
not apply –
(i) unless a
specified condition or requirement is complied with, or
(ii) in
specified circumstances.[8]
(2) Except to any extent
provided by Rules of Court the relevant provisions do not apply to the practice
and procedure of a court or tribunal.[9]
(2A) The relevant provisions
are –
(a) the
provisions of this Part;
(b) Articles 9A,
9B and 9C.[10]
(3) In
this Article –
“practice and procedure of a court or tribunal” includes
all matters in relation to which Rules of Court may be made;
“specified” means specified in the Order.
11 Giving information in writing
(1) A person required or
permitted by an enactment to give information in writing may give that
information by means of an electronic communication –
(a) in
every case, if it is reasonable to expect that the information will be readily
accessible so as to be useable for subsequent reference; and
(b) in
the case of information that is required or permitted to be given to a States
entity or to a person acting on behalf of a States entity, only if –
(i) the entity
consents to the information being given by way of an electronic communication,
and
(ii) any
information technology requirements specified by the entity in relation to the
giving of the information are met.
(c) [11]
(2) Paragraph (1)
applies whether the expression used in the enactment is give, dispatch, send,
serve, or some other similar expression.
(3) For the purposes of paragraph (1)
to give information includes but is not limited to the following –
(a) to
make an application;
(b) to
make or lodge a claim;
(c) to
give, dispatch, send or serve a notice;
(d) to
lodge a return;
(e) to
make a request;
(f) to
make a declaration;
(g) to
lodge or issue a certificate;
(h) to
make, vary or cancel an election;
(i) to
lodge an objection;
(j) to
give a statement of reasons.[12]
(4) Paragraph (1) does
not affect the operation of any other enactment that requires or permits
information to be given in accordance with particular information technology
requirements on a particular kind of data storage device or by means of a
particular kind of electronic communication.
12 Requirement for signature
(1) A person required by an
enactment to provide a signature is to be taken to have met that requirement in
relation to an electronic communication –
(a) in
every case, if a method is used to identify the person and to indicate the person’s
approval of the information communicated; and
(b)
(c) in
the case of a signature that is required to be provided to a States entity or
to a person acting on behalf of a States entity, only if –
(i) the entity
consents to the signature being provided by way of an electronic communication,
and
(ii) any
information technology requirements specified by the entity in relation to the
provision of the signature are met, and
(iii) any
requirements specified by the entity as to the identity of the person by whom
the signature is to be provided are met.
(d) [13]
(2) Paragraph (1) does
not affect the operation of any other enactment that requires –
(a) an
electronic communication to contain an electronic signature (however
described);
(b) an
electronic communication to contain a unique identification in an electronic
form; or
(c) a
particular method to be used in relation to an electronic communication to
identify its originator and to indicate the originator’s approval of the
information communicated.
(3) [14]
13 Producing a document
(1) A person required or
permitted by an enactment to produce a document may produce an electronic form
of the document –
(a) in
every case, if the method used to generate the electronic form of the document
assures the integrity of the information contained in the document;
(b) in
every case, if it is reasonable to expect that the information contained in the
electronic form of the document will be readily accessible so as to be useable
for subsequent reference; and
(c) in
the case of a document that is required or permitted to be produced to a States
entity or to a person acting on behalf of a States entity, only if –
(i) the entity
consents to the document being produced by way of an electronic communication,
and
(ii) any
information technology requirements specified by the entity in relation to the
production of the document are met.
(d) [15]
(2) Paragraph (1) does
not affect the operation of any other enactment that requires or permits a
document to be produced in electronic form –
(a) in
accordance with particular information technology requirements;
(b) on a
particular kind of data storage device; or
(c) by
means of a particular kind of electronic communication.
14 Recording of information
A person required by an enactment to record information in writing
may record the information in electronic form –
(a) in every case, if the
information will be readily accessible so as to be useable for subsequent
reference; and
(b) where the Minister by
Order requires that the information is to be recorded in electronic form on a
particular kind of data storage device, if that
requirement is met.
15 Inspection of information
A person who is required by an enactment to make a document
available for inspection (whether to the public or to a particular person or
group of people) and who keeps the document or a copy of it in electronic form
meets that requirement if –
(a) the method used to keep
the document in electronic form assures the integrity of the information
contained in the document; and
(b) the person makes a copy
of the document available for inspection in a visible and legible form.
16 Retention of document
A person required by an enactment to retain a document meets that
requirement by retaining an electronic form of the document –
(a) in every case, if the
method used to generate the electronic form of the document assures the
maintenance of the integrity of the information contained in the document;
(b) in every case, if the
electronic form of the document will be readily accessible so as to be useable
for subsequent reference; and
(c) where the Minister by
Order requires that the electronic form of the document is to be retained on a
particular kind of data storage device, if that
requirement is met.
17 Retention of information contained in electronic communication
A person required by an enactment to retain for a particular period
information that was the subject of an electronic communication meets that
requirement by retaining or causing another person to retain the information in
an electronic form –
(a) in every case, if it is
reasonable to expect that the information will be readily accessible so as to
be useable for subsequent reference;
(b) in every case, if the
method used to retain the information assures the maintenance of the integrity
of the information;
(c) in every case, if
throughout the period in which it is maintained in electronic form, the person
also retains (or causes the other person to retain) in electronic form any
additional information the person has that identifies –
(i) the
originator of the electronic communication,
(ii) its
addressee,
(iii) its
time of dispatch, and
(iv) its
time of receipt;
(d) in every case, if the
method used to retain the additional information assures the maintenance of the
integrity of the information and it is reasonable to expect that this
additional information will be readily accessible so as to be useable for
subsequent reference; and
(e) where the Minister by
Order requires that the information and additional information are to be
retained in electronic form on a particular kind of data storage device, if that requirement is met throughout that period.
18 Copyright
(1) The generation of an
electronic form of a document for the purposes of this Part does not constitute
an infringement of the copyright in a work or other subject matter embodied in
the document.
(2) The production, by
means of an electronic communication, of an electronic form of a document for
the purposes of this Part does not constitute an infringement of the copyright
in a work or other subject matter embodied in the document.
PART 4
SERVICE PROVIDERS
19 Protection of service providers from criminal liability
(1) If a service provider
is charged with an offence arising out of the handling of an electronic
communication it shall be a defence, in addition to any other defence the
service provider may have, for the service provider to show –
(a) that the
service provider did not know and had no reasonable cause to suspect from the
information known to him or her that the handling of the communication would
(but for this Article) constitute or give rise to the offence; or
(b) that
as soon as was reasonably practicable after the service provider knew or had
reasonable cause to suspect that the handling of the communication would (but
for this Article) give rise to the offence –
(i) the service
provider took such steps as were reasonable to prevent the handling by means of
the information system the service provider owns or operates, and
(ii) the
service provider notified a police officer of any relevant facts in the service
provider’s possession.
(2) A service provider is
not subject to civil liability for action the service provider takes in good
faith pursuant to paragraph (1)(b).
20 Protection of service providers from civil liability
(1) A service provider is
not subject to civil liability arising out of the handling of an electronic
communication if –
(a) the
service provider did not know and had no reasonable cause to suspect from the
information known to him or her that the handling of the communication would
(but for this Article) give rise to that liability; or
(b) as
soon as was reasonably practicable after the service provider knew or had
reasonable cause to suspect that the handling of the communication would (but
for this Article) give rise to that liability, the service provider took such
steps as were reasonable to prevent the handling by means of the information
system the service provider owns or operates.
(2) A service provider is
not subject to civil liability for action the service provider takes in good
faith pursuant to paragraph (1)(b).
21 Obligations of service providers
(1) A service provider is
not required to monitor an electronic communication handled by means of an
information system the service provider owns or operates to ascertain whether
its handling by the service provider would (but for Article 19 or 20)
give rise to an offence or civil liability.
(2) Except as may be
necessary to comply with a provision of this Part nothing in this Part relieves
a service provider from –
(a) an
obligation to comply with an order or direction of a court or other competent
authority;
(b) an
obligation under any other enactment; or
(c) a
contractual obligation.
PART 5
RULES AND ORDERS
22 Rules of Court
(1) Rules of Court may make
provisions necessary or expedient for the purposes of this Law.
(2) Rules of Court made for
the purposes of Article 9 may, in particular, make provision in respect
of –
(a) the
manner in which information in electronic form is to be provided to a court,
which may include the use of an information system; and
(b) the
provision in hard form or in a legible and visible form of information provided
in electronic form.
(3) The power to make Rules
of Court under Article 13 of the Royal Court (Jersey)
Law 1948 shall include a power to make Rules under this Article.
23 Orders
(1) The Minister may by Order
prescribe anything which may be prescribed under this Law.
(2) The Minister shall not
make an Order for a purpose of Part 3 in respect of an enactment without
the approval of the relevant Minister.
(3) The Minister shall make
an Order for a purpose of Part 3 in respect of an enactment if requested
to do so by the relevant Minister.
(4) An Order made by the
Minister under this Law –
(a) may
make different provision for different cases; and
(b) may
contain incidental, supplemental, consequential and transitional provision.
(5) [16]
(6) In this Article
“relevant Minister”, in respect of an enactment, means the Minister
with responsibility for the administration of the enactment.
PART 6
CITATION
24 Citation
This Law may be cited as the Electronic Communications (Jersey)
Law 2000.