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; sanctioned by Order
of Her Majesty in Council of the
11th day of OCTOBER 2000
____________
(Registered on the 20th day of October 2000)
____________
STATES OF JERSEY
____________
The
19th day of July 2000
____________
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council,
have adopted the following Law -
PART 1
INTERPRETATION
ARTICLE
1
Interpretation
(1) In this Law, unless the
context otherwise requires -
“Committee”
means the Industries Committee;
“company”
means a body corporate 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;
“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;
“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;
“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 Committee by Order;
“service
provider” means -
(a) a person who owns or
operates an information system by means of which, on behalf of another, he
handles electronic communications; and
(b) an employee or agent of
a person referred to in sub-paragraph (a) acting in the course of his 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) a Committee of the
States;
(b) an officer or employee
of the States;
(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) 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.
(4) A reference in this Law
to a Part or Article by number only and without further identification is a
reference to the Part or Article of that number in this Law.
(5) A reference in an
Article or other division of this Law to a paragraph, sub-paragraph or clause
by number or letter only and without further identification is a reference to
the paragraph, sub-paragraph or clause of that number or letter in the Article
or other division of this Law.
(6) Unless the context
otherwise requires, a reference in this Law to an enactment is a reference to
that enactment as amended from time to time and includes a reference to that
enactment as extended or applied under another enactment, including another
provision of this Law.
ARTICLE 2
Changes and advancements in technology
(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) Regulations made under
paragraph (1) may contain incidental, supplemental, consequential and
transitional provisions.
PART 2
GENERAL PRINCIPLES
ARTICLE 3
Legal recognition
Information
shall not be denied legal effect, validity or enforceability, solely on the
grounds that it is in electronic form.
ARTICLE 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.
ARTICLE
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.
ARTICLE
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.
ARTICLE 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 his place of business; and
(b) to have been received
at the place where its addressee has his 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.
ARTICLE
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 his agent enabled him to gain access
to a method used by the particular person to identify himself 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 he 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 he 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 he 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 he receives is a separate
communication unless he knew or could have known had he exercised reasonable
care or used an agreed procedure that an electronic communication he has
received is a duplicate of one he had already received.
(7) Nothing in this Article
affects the law of agency or the law on the formation of contracts.
ARTICLE
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.
PART 3
REQUIREMENTS UNDER ENACTMENTS
ARTICLE
10
Exemptions - Part 3
(1) The Committee may by
Order provide that this Part, or a specified provision of this Part -
(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.
(2) Except to any extent
provided by Rules of Court this Part does not apply to the practice and
procedure of a court or tribunal.
(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.
ARTICLE
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;
(b) where the information
is required or permitted to be given to a States entity or to a person acting
on behalf of a States entity and the entity requires that the information be
given in accordance with particular information technology requirements by
means of a particular kind of electronic communication, if the entity’s
requirement is met; and
(c) where the information
is required or permitted to be given to a person who is neither a States entity
nor a person acting on behalf of a States entity, if the person to whom the
information is required or permitted to be given consents to the information
being given by way of an electronic communication.
(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
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.
(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.
ARTICLE
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;
(b) in every case, if the
method used is as reliable as is appropriate for the purposes for which the
information is communicated;
(c) where the signature is
to be provided to a States entity or to a person acting on behalf of a States
entity and the entity requires that the method used as mentioned in
sub-paragraph (a) be in accordance with particular information technology
requirements, if the entity’s requirement is met; and
(d) where the signature is
to be provided to a person who is neither a States entity nor a person acting
on behalf of a States entity, if the person to whom the signature is to be
provided consents to that requirement being met by the use of a method that
identifies the person and indicates his approval of the information
communicated.
(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 his approval of the information communicated.
ARTICLE
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;
(c) where the document is required
or permitted to be produced to a States entity or to a person acting on behalf
of a States entity and the entity requires that an electronic form of the
document be produced in accordance with particular information technology
requirements by means of a particular kind of electronic communication, if the
entity’s requirement is met; and
(d) where the document is
required or permitted to be produced to a person who is neither a States entity
nor a person acting on behalf of a States entity, if the person to whom the
document is required or permitted to be produced consents to its production by
means of an electronic form of the document.
(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.
ARTICLE 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 Committee 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.
ARTICLE 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) he makes a copy of the
document available for inspection in a visible and legible form.
ARTICLE
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 Committee 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.
ARTICLE
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 he 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 Committee 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.
ARTICLE
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
ARTICLE 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 he may
have, for the service provider to show -
(a) that he did not know
and had no reasonable cause to suspect from the information known to him 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 he knew or had reasonable cause to suspect that
the handling of the communication would (but for this Article) give rise to the
offence -
(i) he took such
steps as were reasonable to prevent the handling by means of the information
system he owns or operates; and
(ii) he notified a police
officer of any relevant facts in his possession.
(2) A service provider is
not subject to civil liability for action he takes in good faith pursuant to
paragraph (1)(b).
ARTICLE 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) he did not know and had
no reasonable cause to suspect from the information known to him 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 he knew or had reasonable cause to suspect that
the handling of the communication would (but for this Article) give rise to
that liability, he took such steps as were reasonable to prevent the handling
by means of the information system he owns or operates.
(2) A service provider is
not subject to civil liability for action he takes in good faith pursuant to
paragraph (1)(b).
ARTICLE 21
Obligations of service
providers
(1) A service provider is
not required to monitor an electronic communication handled by means of an
information system he owns or operates to ascertain whether its handling by him
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
ARTICLE
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 12 of the Royal Court (Jersey) Law 1948 shall include a power to make Rules under this Article.
ARTICLE
23
Orders
(1) The Committee may by
Order prescribe anything which may be prescribed under this Law.
(2) The Committee shall not
make an Order for a purpose of Part 3 in respect of an enactment without the
approval of the relevant Committee.
(3) The Committee shall
make an Order for a purpose of Part 3 in respect of an enactment if requested
to do so by the relevant Committee.
(4) An Order made by the
Committee under this Law -
(a) may make different
provision for different cases; and
(b) may contain incidental,
supplemental, consequential and transitional provision.
(5) The Subordinate
Legislation (Jersey) Law 1960 applies to Orders made under this Law.
(6) In this Article “relevant
Committee”, in respect of an enactment, means the Committee with
responsibility for the administration of the enactment.
PART 6
CITATION
AND COMMENCEMENT
ARTICLE
24
Citation and commencement
(1) This Law may be cited
as the Electronic Communications (Jersey) Law 2000.
(2) This Law shall come
into force on such day or days as the States may by Act appoint and different
days may be appointed for different purposes or different provisions of this
Law.
C.M.
NEWCOMBE
Deputy Greffier of the States.