Electronic Transactions Act

• Effective since April 2, 2007.
• Affects ALL Jamaican legislation which refers to "writing".
• Act covers many aspects of electronic communications generally.

Purpose of Act

• To fulfill Government's E-Transactions Policy
• To build legal and regulatory framework
• Secure confidence for Jamaicans in e-commerce
• To conform with international positions
• Act will confirm legal basis for:
• our purchase of goods and services online
• the privacy and security of our E-transactions
• Transacting E-business with Government departments
• although arguable that electronic transactions are already legitimate

Objects of Act

• Facilitate electronic transactions
• Promote compatible legal and business infrastructure
• Eliminate uncertainties
• Promote public confidence in E-transactions
• Facilitate E-Filing with Government
• Excluded transactions:
• Wills
• Transfer of Land
• Matters re Trust Law or powers of attorney
• Procedures governed by Civil Procedure Rules 2002

Main Provisions of the Act

• No obligation for E-commerce
• But Act applies to all E-transactions
• Government can stipulate that a transaction with it must be E-transaction
• E information = written information
• Where law requires written information, E information is acceptable if:
• its accessible and capable of retention
• If information to Government, information meets the set technological requirements and verification requirements
• For non-Government entity, recipient consents to E information
• "giving of information" means:
• making application
• serving notice
• making request
• issuing certificate
• lodging objection
• giving statement
• E-signature is valid if:
• clear method to identify signatory
• method is reliable
• if information is to Government, method satisfies set requirements
• if non-Government, person consents
• Presumption of acceptability of E-signature if:
• uniquely linked to signatory
• capable of identifying signatory
• Signature-creation under sole control of signatory
• subsequent alteration is detectable
• Document may be attested, notarised or verified or made under oath electronically.
• Where law requires "original" information, E information qualifies if:
• method of protection is reliable
• its accessible for subsequent reference
• if information is to Government, information meets set technological and verification requirements
• Non Non-Government person consents
• Where law requires information to be "kept", it can, be kept electronically
• E information admissible in court
• In assessing evidential weight, regard to:
• reliability of storage and communication
• manner of identification of origination
• any other relevant factor
• E information can satisfy service or delivery requirements.
• Where law prescribes a form, Minister to make regulations to contemplate E form.
• Where law requires payment to Government, regulations should cover E-payment.
• Unless otherwise agreed, an offer and acceptance may be expressed electronically.
• Contract may be formed by automated interaction of computers.
• Sender can require acknowledgment receipt.

Consumer Protection Provisions in Act

• E merchant website must provide consumers with merchant's:
• Full name, address, email address and telephone numbers
• Address for legal service
• Corporate status, if any
• Membership in self-regulatory or accredited bodies
• code of conduct
• characteristics of goods and services
• full price (including taxes, fees or costs)
• required method of payment
• full terms and conditions of contract
• time for delivery
• return, exchange and refund policy
• dispute resolution code
• Online customer must be given opportunity to review entire electronic transaction.
• Online customer free to cancel E-transaction without charge or penalty within seven (7) days, subject to exceptions.
• Exceptions:
• Financial, insurance or banking service.
• Auctions.
• Where price fluctuates and not controllable by supplier.
• Goods are personalised or are perishable.
• Audio or video recordings or computer software.
• sale of newspapers, magazines or books.
• gaming or lottery services.
• Provision of accommodation, transport or catering services.
• Sender of unsolicited E-communication must give consumers
• opportunity to decline future receipt
• if requested, source of consumer's contact information.
• Failure gives rise to offence. No agreement if consumer fails to respond.
• E-supplier must meet agreed delivery time or, if none, must deliver within thirty (30) days
• If late delivery, consumer can cancel

Practical Consequence (general)

• Increase in E transactions. Effective website essential
• Encouragement of online sales to foreigners
• More Government E-filing
• Increased on-line fraud
• Boost for encryption and protection services
• More demand for computer-savy workers

Practical Consequences

Websites will need:

• updating
• more detail about profile and policies
• easily facilitate on-line purchase of goods and services
• integrate easy delivery of goods
• to be user-friendly and robust
• Contain all appropriate disclaimers

Forms & Agreements should:

• be reviewed to ensure compatibility with law and practice
• protect company
• be clear to customer
• synchronise paper and E-forms
• allow E-transactions

Codes of Conduct re computer use will need updating

• Better internal procedures to keep customer's personal information confidential.
• Need staff with computer skills
• Good record-keeping needed

Improved I.T. Management with:

• necessary encryption and protection services
• monitor internal activities
• Good customer assurance

Fraud prevention

• Education
• Regular review
• Clear confirmation
• Appropriate software and firewall

Biometrics

• Faces
• Finger prints
• Eyes

Unsolicited Communication

• Customers must be able to decline communication
• Customers can unsubscribe
• Records kept of unwilling customers

Reference
Ministry of Mining and Telecommunications