Electronic Transactions Act 1999

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1999/Acts/Electronic%20Transactions%20Act%201999.pdf

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Electronic Transactions Act 1999
ELECTRONIC TRANSACTIONS ACT 1999

1

BERMUDA
1999 : 26

ELECTRONIC TRANSACTIONS ACT 1999

[Date of Assent 5 August 1999]

[Operative Date 4 October 1999]

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

1 Citation
2 Definitions
3 Crown to be bound
4 Objects
5 Regulatory policy
6 Exclusions
7 Variation by agreement

PART II

LEGAL REQUIREMENTS
RESPECTING ELECTRONIC

RECORDS

8 Legal recognition of electronic
records

9 Writing
10 Delivery
11 Signature
12 Original form
13 Retention of electronic records
14 Admissibility and evidential

weight of electronic records

PART III

COMMUNICATION OF
ELECTRONIC RECORDS

15 Formation and validity of
contracts

16 Attribution of electronic
records

17 Acknowledgement of receipt of
electronic records

ELECTRONIC TRANSACTIONS ACT 1999

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18 Time and place of dispatch
and receipt of electronic
records

PART IV

ELECTRONIC SIGNATURES

19 Electronic signature
associated with accredited
certificate

20 Certification and revocation of
certification

21 Recognition of external
certification service providers

22 Pseudonyms
23 Liability of authorised

certification service provider

PART V

ENCRYPTION

24 Regulations
25 Amendments to the Criminal

Code

PART VI

DATA PROTECTION

26 Data protection

PART VII

INTERMEDIARIES AND E-
COMMERCE SERVICE PROVIDERS

27 Liability of intermediaries
28 Procedure for dealing with

unlawful, defamatory etc.
information

29 Codes of conduct and
standards for intermediaries
and e-commerce service
providers

PART VIII

E-COMMERCE ADVISORY BOARD

30 E-Commerce Advisory Board

PART IX

GENERAL

31 Offences, liability of corporate
officers

32 Regulations
33 Consequential amendments
34 Commencement

SCHEDULE

WHEREAS it is expedient to make provision for electronic
transactions and for matters connected therewith:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

ELECTRONIC TRANSACTIONS ACT 1999

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PART I

PRELIMINARY

Citation
1 This Act may be cited as the Electronic Transactions Act 1999.

Definitions
2 In this Act—

"accredited certificate" means an electronic record that—

(i) associates a signature verification device to a
person;

(ii) confirms the identity of that person;

(iii) is issued by an authorised certification service
provider; and

(iv) meets the relevant criteria;

"addressee" in relation to an electronic record, means a person
who is intended by the originator to receive the electronic
record, but does not include a person acting as an
intermediary with respect to that electronic record;

"authorised certification service provider" means a certification
service provider authorised under section 20(2) to provide
accredited certificates;

"certification service provider" means a person who issues
identity certificates for the purposes of electronic signatures
or provides other services to the public related to electronic
signatures;

"data controller" means a person who, either alone or jointly or
in common with other persons, determines the purposes for
which and the manner in which any personal data is, or is to
be, processed;

"data processor" means a person who processes personal data
on behalf of a data controller;

"e-commerce service provider" means a person who uses
electronic means in providing goods, services or information;

"electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic or similar
capabilities;

ELECTRONIC TRANSACTIONS ACT 1999

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"electronic agent device" means a program, or other electronic or
automated means configured and enabled by a person that is
used to initiate or respond to electronic records or
performance in whole or in part without review by an
individual;

"electronic record" means a record created, stored, generated,
received or communicated by electronic means;

"electronic signature" means a signature in electronic form in,
attached to, or logically associated with, information that is
used by a signatory to indicate his adoption of the content of
that information and meets the following requirements—

(i) it is uniquely linked to the signatory;

(ii) it is capable of identifying the signatory;

(iii) it is created using means that the signatory can
maintain under his sole control; and

(iv) it is linked to the information to which it relates
in such a manner that any subsequent
alteration of the information is revealed;

"electronic signature product" means hardware or software, or
components thereof, that are intended to be used by a
certification service provider for the provision of electronic
signature services;

"identifiable natural person" means an individual who can be
identified, directly or indirectly, in particular by reference to
an identification number or to one or more factors specific to
his physiological, mental, economic, cultural or social
identity;

"information" includes data, text, images, sounds, codes,
computer programs, software and databases;

"information processing system" means an electronic system for
creating, generating, sending, receiving, storing, displaying,
or otherwise processing information;

"intermediary" with respect to an electronic record, means a
person who, on behalf of another person, sends, receives or
stores that electronic record or provides other services with
respect to that electronic record;

"Minister" means the Minister responsible for telecommu-
nications and electronic commerce;

ELECTRONIC TRANSACTIONS ACT 1999

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"originator" in relation to an electronic record, means a person
by whom, or on whose behalf, the electronic record purports
to have been sent or generated prior to storage, if any, but
does not include a person acting as an intermediary with
respect to that electronic record;

"personal data" means any information relating to an identified
or identifiable natural person;

"prescribed" means prescribed by regulations under section 32;

"record" means information that is inscribed on a tangible
medium or that is stored in an electronic, paper-based or any
other medium and is retrievable in perceivable form;

"security procedure" means a procedure, established by law or
agreement or knowingly adopted by each party, that is
employed for the purpose of verifying that an electronic
signature, record or performance is that of a particular
person or for detecting changes or errors in the content of an
electronic record;

"signature creation device" means unique data, including codes
or private cryptographic keys, or a uniquely configured
physical device which is used by the signatory in creating an
electronic signature;

"signature verification device" means unique data, including
codes or public cryptographic keys, or a uniquely configured
physical device which is used in verifying an electronic
signature;

Crown to be bound
3 (1) This Act binds the Crown.

(2) Notwithstanding subsection (1), nothing in this Act obliges
any Government Department to generate, send, receive, store or
otherwise process any record by electronic means, but the Minister may,
by notice published in the Gazette, indicate that a Government
Department will receive and process electronic records relating to such
matters as may be specified in the notice.

Objects
4 The objects of this Act are—

(a) to enhance the reputation of Bermuda as an
international business centre;

ELECTRONIC TRANSACTIONS ACT 1999

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(b) to facilitate electronic transactions on a technology
neutral basis by means of reliable electronic records;

(c) to remove uncertainties in relation to conducting
transactions electronically with respect to the
requirements for documents and for signatures to be in
writing;

(d) to promote public confidence in the validity, integrity
and reliability of conducting transactions electronically;
and

(e) to promote the development of the legal and business
infrastructure necessary to implement electronic
transactions securely.

Regulatory policy
5 Transactions carried out by electronic means shall be regulated
in a manner that—

(a) permits and encourages the growth of business by
electronic means through the operation of free market
forces;

(b) promotes the greatest possible use of industry self-
regulation;

(c) is flexible; and

(d) is technologically neutral.

Exclusions
6 (1) Part II (legal requirements respecting electronic records) and
Part III (communication of electronic records) do not apply to any rule of
law requiring writing or signatures for the following matters—

(a) the creation, execution or revocation of a will or
testamentary instrument;

(b) the conveyance of real property or the transfer of any
interest in real property.

(2) The Minister may by regulations provide that this Act, or
such provisions thereof as may be specified in the regulations, does not
apply to any class of transactions, persons, matters or things specified in
the regulations.

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Variation by agreement
7 As between parties involved in generating, sending, receiving,
storing or otherwise processing records, any provision of Part II (legal
requirements respecting electronic records) or Part III (communication of
electronic records) may be varied by agreement.

PART II

LEGAL REQUIREMENTS RESPECTING ELECTRONIC RECORDS

Legal recognition of electronic records
8 Information shall not be denied legal effect, validity, admissibility
or enforceability solely on the ground that it is—

(a) in the form of an electronic record; or

(b) not contained in the electronic record purporting to give
rise to such legal effect, but is referred to in that
electronic record.

Writing
9 (1) Where information is required by law to be in writing or is
described in any statutory provision as being written, that requirement
or description is met by an electronic record if the information contained
in the electronic record is accessible and is capable of retention for
subsequent reference.

(2) Subsection (1) applies whether the requirement for the
information to be in writing is in the form of an obligation or the law
provides consequences if it is not in writing.

Delivery
10 (1) Where information is required by law to be delivered,
dispatched, given or sent to, or to be served on, a person, that
requirement is met by doing so in the form of an electronic record
provided that the originator of the electronic record states that the
receipt of the electronic record is to be acknowledged and the addressee
has acknowledged its receipt.

(2) Subsection (1) applies whether the requirement for delivery,
dispatch, giving, sending or serving is in the form of an obligation or the
law provides consequences for the information not being delivered,
dispatched, given, sent or served.

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Signature
11 (1) Where the signature of a person is required by law, that
requirement is met by an electronic record if—

(a) a method is used to identify that person and to indicate
that the person intended to sign or otherwise adopt the
information in the electronic record; and

(b) that method is as reliable as is appropriate for the
purpose for which the electronic record was generated or
communicated, in the light of all the circumstances,
including any relevant agreement.

(2) An electronic record that meets the requirements of
subsection (1)(a) and (b) shall not be denied legal effect, validity and
enforceability solely on the ground that it—

(a) is not an electronic signature; or

(b) is not associated with an accredited certificate.

(3) Subsection (1) applies whether the requirement for a
signature is in the form of an obligation or the law provides
consequences for the absence of a signature.

Original form
12 (1) Where information is required by law to be presented or
retained in its original form, that requirement is met by an electronic
record if—

(a) there exists a reliable assurance as to the integrity of the
information from the time it was first generated in its
final form as an electronic record or otherwise; and

(b) where it is required that information be presented, that
information is capable of being accurately represented to
the person to whom it is to be presented.

(2) Subsection (1) applies whether the requirement for the
information to be presented or retained in its original form is in the form
of an obligation or the law provides consequences if it is not presented or
retained in its original form.

(3) For the purposes of subsection (1)(a)—

(a) the criterion for assessing integrity is whether the
information has remained complete and unaltered, apart
from the addition of any endorsement and any change
which arises in the normal course of communication,
storage and display; and

ELECTRONIC TRANSACTIONS ACT 1999

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(b) the standard of reliability required is to be assessed in
the light of the purpose for which the information was
generated and all the relevant circumstances.

Retention of electronic records
13 (1) Where certain documents, records or information are
required by law to be retained, that requirement is met by retaining
electronic records if the following conditions are satisfied—

(a) the information contained in the electronic record is
accessible and is capable of retention for subsequent
reference;

(b) the electronic record is retained in the format in which it
was generated, sent or received, or in a format which
can be demonstrated to represent accurately the
information generated, sent or received; and

(c) any information that enables the identification of the
origin and destination of an electronic record and the
date and time when it was sent or received is retained.

(2) An obligation to retain documents, records or information in
accordance with subsection (1) does not extend to any information the
sole purpose of which is to enable the message to be sent or received.

(3) A person may satisfy the requirement referred to in
subsection (1) by using the services of any other person, if the conditions
set out in subsection (1)(a), (b) and (c) are met.

Admissibility and evidential weight of electronic records
14 (1) In any legal proceedings, nothing in the rules of evidence
shall apply so as to deny the admissibility of an electronic record in
evidence—

(a) solely on the ground that it is an electronic record; or

(b) if it is the best evidence that the person adducing it
could reasonably be expected to obtain, on the ground
that it is not in its original form.

(2) Information in the form of an electronic record will be given
due evidential weight and in assessing the evidential weight of an
electronic record, regard shall be had to—

(a) the reliability of the manner in which the electronic
record was generated, stored or communicated;

(b) the reliability of the manner in which the integrity of the
information was maintained;

ELECTRONIC TRANSACTIONS ACT 1999

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(c) the manner in which the originator was identified; and

(d) any other relevant factor.

(3) This section does not affect the application of sections 27E,
27F, 43A and 43B of the Evidence Act 1905 (which relate to the
admissibility of documents produced by computers).

PART III

COMMUNICATION OF ELECTRONIC RECORDS

Formation and validity of contracts
15 (1) In the context of formation of contracts, unless otherwise
agreed by the parties, an offer and the acceptance of an offer may be
expressed by means of electronic records.

(2) As between the originator and the addressee of an electronic
record, a declaration of intention or other statement or delivery of a deed
shall not be denied legal effect, validity or enforceability solely on the
ground that it is in the form of an electronic record.

Attribution of electronic records
16 (1) An electronic record is attributable to a person if the
electronic record resulted from the action of the person, acting in person,
by his agent, or by his electronic agent device.

(2) Attribution may be proven in any manner, including by
showing the efficacy of any security procedure applied to determine the
person to whom the electronic record was attributable.

(3) Attribution of an electronic record by a person under this
section has the effect provided for by the law, regulation, or agreement
regarding the security procedure.

Acknowledgement of receipt of electronic records
17 (1) Subsections (2), (3) and (4) apply where, on or before
sending an electronic record, or by means of that electronic record, the
originator has requested or has agreed with the addressee that receipt of
the electronic record be acknowledged.

(2) Where the originator has not agreed with the addressee that
the acknowledgement be given in a particular form or by a particular
method, an acknowledgement may be given by—

(a) any communication by the addressee, automated or
otherwise; or

ELECTRONIC TRANSACTIONS ACT 1999

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(b) any conduct of the addressee,

that is reasonably sufficient to indicate to the originator that the
electronic record has been received.

(3) Where the originator has stated that the electronic record is
conditional on receipt of the acknowledgement, the electronic record is to
be treated as though it had never been sent until the acknowledgement
is received.

(4) Where the originator has not stated that the electronic
record is conditional on receipt of the 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, the originator—

(a) may give notice to the addressee stating that no
acknowledgement has been received and specifying a
reasonable time by which the acknowledgement must be
received; and

(b) if the acknowledgement is not received within the time
specified in paragraph (a), may, upon notice to the
addressee, treat the electronic record as though it had
never been sent or exercise any other rights the
originator may have.

(5) Where the originator receives the addressee's
acknowledgement of receipt, it is presumed that the related electronic
record was received by the addressee, but that presumption does not
imply that the electronic record corresponds to the record received.

(6) Where the received acknowledgement states that the related
electronic record met technical requirements, either agreed upon or set
forth in applicable standards, it is presumed that those requirements
have been met.

(7) Except in so far as it relates to the sending or receipt of the
electronic record, this section is not intended to deal with the legal
consequences that may flow either from that electronic record or from
the acknowledgement of its receipt.

Time and place of dispatch and receipt of electronic records
18 (1) Unless otherwise agreed between the originator and the
addressee, the dispatch of an electronic record occurs when it enters an
information processing system outside the control of the originator.

ELECTRONIC TRANSACTIONS ACT 1999

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(2) Unless otherwise agreed between the originator and the
addressee, the time of receipt of an electronic record is determined as
follows—

(a) where the addressee has designated an information
processing system for the purpose of receiving electronic
records, receipt occurs—

(i) at the time when the electronic record enters the
designated information processing system; or

(ii) if the electronic record is sent to an information
processing system of the addressee that is not
the designated information processing system,
at the time when the electronic record comes to
the attention of the addressee;

(b) where the addressee has not designated an information
processing system, receipt occurs when the electronic
record enters an information processing system of the
addressee or otherwise comes to the attention of the
addressee.

(3) Subsection (2) applies notwithstanding that the place where
the information processing system is located may be different from the
place where the electronic record is deemed to be received under
subsection (4).

(4) Unless otherwise agreed between the originator and the
addressee, an electronic record is deemed to be dispatched at the place
where the originator has his place of business, and is deemed to be
received at the place where the addressee has his place of business.

(5) For the purposes of subsection (4)—

(a) if the originator or the addressee has more than one
place of business, the place of business is that which
has the closest relationship to the transaction to which
the electronic record relates or, where there is no such
transaction, the place of business is presumed to be the
principal place of business; or

(b) if the originator or the addressee does not have a place
of business, it is presumed to be where the originator or
the addressee ordinarily resides.

ELECTRONIC TRANSACTIONS ACT 1999

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PART IV

ELECTRONIC SIGNATURES

Electronic signature associated with an accredited certificate
19 An electronic signature that is associated with an accredited
certificate issued by an authorised certification service provider under
section 20 is deemed to satisfy the requirements of subsection 11(1)(a)
and (b).

Certification and revocation of certification
20 (1) The provision of certification services for electronic
signatures is not subject to prior authorisation.

(2) The Minister, on application by a certification service
provider and on payment of such fee as may be prescribed under the
Government Fees Act 1965, may, if satisfied that the applicant meets the
relevant criteria (which may include criteria in respect to electronic
signature products), by notice published in the Gazette, authorise the
applicant to provide accredited certificates.

(3) Subject to subsection (4), the Minister, if satisfied that an
authorised certification service provider no longer meets the relevant
criteria, may by notice published in the Gazette revoke an authorisation
given under subsection (2).

(4) Before revoking an authorisation under subsection (3), the
Minister shall give notice in writing to the authorised certification service
provider of his intention to do so and indicating his reasons for the
proposed revocation and shall invite the authorised certification service
provider, within 14 days of the notice, to submit representations in
writing as to why the authorisation should not be revoked, and the
Minister shall consider those representations.

(5) In this section the "relevant criteria" means such policy
criteria as the Minister may specify by notice published in the Gazette.

Recognition of external certification service providers
21 (1) The Minister may by notice published in the Gazette,
recognise certificates or classes of certificates issued in, or certification
service providers or classes of certification service providers established
in any other jurisdiction and, upon such recognition and on payment of
such fee as may be prescribed under the Government Fees Act 1965—

(a) those certificates or classes of certificates shall be
deemed to be accredited certificates; and

ELECTRONIC TRANSACTIONS ACT 1999

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(b) those certification service providers or classes of
certification service providers shall be deemed to be
authorised under subsection 20(2).

(2) In determining to accord recognition under subsection (1)
the Minister shall have regard to whether—

(a) the certificates or classes of certificates are required to,
and do in fact, meet obligations equivalent to those
required for an accredited certificate; and

(b) the certification service providers or classes of
certification service providers are required to, and do in
fact, meet criteria equivalent to those required for an
authorised certification service provider.

(3) The Minister may, by notice published in the Gazette,
revoke any recognition accorded under subsection (1), but, before doing
so, the Minister shall advise the person affected of his intention to do so
and indicating his reasons for the proposed revocation and shall invite
that person, within 14 days of the notice, to submit representations in
writing as to why the recognition should not be revoked, and the Minister
shall consider those representations.

Pseudonyms
22 (1) Certification service providers may, at the request of a
particular signatory, indicate in the relevant certificate a pseudonym
instead of the signatory's name.

(2) Where a pseudonym is indicated pursuant to subsection (1),
the certification service provider shall, where necessary for the
investigation of an offence involving the use of electronic signatures or
where otherwise required by law to do so, transfer personal data relating
to the signatory.

(3) Where personal data is transferred pursuant to subsection
(2), the certification service provider shall make a record of the transfer
and as soon as possible thereafter give notice to the signatory of the
transfer.

Liability of authorised certification service provider
23 (1) By issuing an accredited certificate, an authorised
certification service provider is liable to any person who reasonably relied
on the certificate for—

(a) the accuracy of all information in the accredited
certificate as from the date on which it was issued,

ELECTRONIC TRANSACTIONS ACT 1999

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unless the authorised certification service provider has
stated otherwise in the accredited certificate;

(b) assurance that the person identified in the accredited
certificate held, at the time the accredited certificate was
issued, the signature creation device corresponding to
the signature verification device given or identified in the
accredited certificate;

(c) if the authorised certification service provider generates
both the signature creation device and the signature
verification device, assurance that the two devices
function together in a complementary manner,

unless the person who relied on the accredited certificate knows or ought
reasonably to have known that the authorisation of the certification
service provider has been revoked.

(2) An authorised certification service provider is not liable for
errors in the information in an accredited certificate where—

(a) the information was provided by or on behalf of the
person identified in the accredited certificate; and

(b) the certification service provider can demonstrate that
he has taken all reasonably practical measures to verify
that information.

(3) An authorised certification service provider that—

(a) indicates in the accredited certificate limits on the uses
of that certificate; and

(b) makes those limits known to third parties,

is not liable for damages arising from the use of the accredited certificate
contrary to those limits.

(4) The limits in subsection (3) may include a limit on the value
of transactions for which the accredited certificate is valid.

PART V

ENCRYPTION

Regulations
24 (1) The Minister may make regulations—

(a) respecting the use, import and export of encryption
programs or other encryption products;

ELECTRONIC TRANSACTIONS ACT 1999

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(b) prohibiting the export of encryption programs or other
encryption products from Bermuda generally or subject
to such restrictions as may be prescribed.

(2) For the avoidance of doubt it is declared that, subject to any
regulations made under subsection (1), it is lawful in Bermuda for a
person to use any encryption program or other encryption product of any
bit size or other measure of the strength of the encryption provided that
it has lawfully come into the possession of that person.

Amendments to the Criminal Code
25 Section 464 of the Criminal Code Act 1907 is amended—

(a) in subsection (1), by inserting after the words "any such
thing" the words ", together with any device, computer
program or information necessary to secure access to, or
to comprehend the meaning of, such thing or its
contents";

(b) by inserting the following after subsection (1)—

" (1A) If it appears to a magistrate or to a Justice
of the Peace, on complaint made on oath, that there are
reasonable grounds for suspecting that a person is in
possession of information or of a computer, computer
program on any similar device which is relevant to the
interpretation of any thing seized under subsection (1),
then the magistrate or Justice of the Peace may direct
that person to assist a police officer in the manner
provided in subsection (7).".

(c) by the addition of the following:

" (6) If the thing seized under a warrant issued
under subsection (1) is a computer, computer program,
or any other similar device, the magistrate may direct
that a police officer be permitted to make copies of any
information, software or data required for the
investigation or prosecution of an offence and may direct
any person arrested in connection with the warrant
pursuant to which the computer, computer program or
other similar device was seized to disclose or execute any
procedure necessary to render the contents of the
computer intelligible.

(7) If any other person is in possession of the
devices, procedures or information necessary to render
intelligible the contents of a computer, computer

ELECTRONIC TRANSACTIONS ACT 1999

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program, or any other similar device, for the purposes of
subsection (6), then the magistrate may by direction
pursuant to subsection (1A), require such person to
surrender or provide copies of such devices or
information or to execute such procedures.

(8) Any person who fails to comply with a
direction under subsection (1A), (6) or (7) is guilty of an
offence and is liable on summary conviction to
imprisonment for 6 months or to a fine of $50,000, or to
both.".

PART VI

DATA PROTECTION

Data protection
26 (1) The Minister may make regulations prescribing standards
for the processing of personal data whether or not the personal data
originates inside Bermuda.

(2) The regulations may provide for—

(a) the voluntary registration and de-registration to the
standards by data controllers and data processors;

(b) the establishment of a register that is available for public
inspection showing particulars of data controllers and
data processors who have registered or de-registered to
the standards and the dates thereof and the countries in
respect of which the registration applies;

(c) the application of the standards to those countries
specified in the regulations;

(d) different standards to be applied in respect of personal
data originating from different countries.

(3) A data controller or data processor who voluntarily registers
to a standard in subsection (1) must comply with the standard, as it may
be amended from time to time, in respect to any personal data
originating from a country to which the standard applies that is collected
by the data controller during the period of registration, including any
time after de-registration, and, if he fails to do so, is guilty of an offence
and is liable on summary conviction to imprisonment for 6 months or to
a fine of $50,000, or to both.

ELECTRONIC TRANSACTIONS ACT 1999

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PART VII

INTERMEDIARIES AND E-COMMERCE SERVICE PROVIDERS

Liability of intermediaries
27 (1) An intermediary is not subject to any civil or criminal
liability in respect of any information contained in an electronic record in
respect of which the intermediary provides services, if the inter-mediary
was not the originator of that electronic record and—

(a) has no actual knowledge that the information gives rise
to civil or criminal liability;

(b) is not aware of any facts or circumstances from which
the likelihood of civil or criminal liability in respect of the
information ought reasonably to have been known; or

(c) follows the procedure set out in section 28 if the
intermediary—

(i) acquires knowledge that the information gives
rise to civil or criminal liability; or

(ii) becomes aware of facts or circumstances from
which the likelihood of civil or criminal liability
in respect of the information ought reasonably to
have been known.

(2) An intermediary is not required to monitor any information
contained in an electronic record in respect of which the intermediary
provides services in order to establish knowledge of, or to become aware
of, facts or circumstances to determine whether or not the information
gives rise to civil or criminal liability.

(3) Nothing in this section relieves an intermediary from
complying with any court order, injunction, writ, Ministerial direction,
regulatory requirement, or contractual obligation in respect of an
electronic record.

Procedure for dealing with unlawful, defamatory etc. information
28 (1) If an intermediary has actual knowledge that the
information in an electronic record gives rise to civil or criminal liability,
as soon as practicable the intermediary shall—

(a) remove the information from any information processing
system within the intermediary's control and cease to
provide or offer to provide services in respect of that
information; and

ELECTRONIC TRANSACTIONS ACT 1999

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(b) notify the Minister or appropriate law enforcement
agency of the relevant facts and of the identity of the
person for whom the intermediary was supplying
services in respect of the information, if the identity of
that person is known to the intermediary.

(2) If an intermediary is aware of facts or circumstances from
which the likelihood of civil or criminal liability in respect of the
information in an electronic record ought reasonably to have been known
as soon as practicable the intermediary shall—

(a) follow the relevant procedure set out in a code of
conduct approved or standard appointed under section
29 if such code or standard applies to the intermediary;
or

(b) notify the Minister.

(3) If the Minister is notified in respect of any information
under subsection (2), the Minister may direct the intermediary to—

(a) remove the electronic record from any information
processing system within the control of the intermediary;

(b) cease to provide services to the person to whom the
intermediary was supplying services in respect of that
electronic record; and

(c) cease to provide services in respect of that electronic
record.

(4) An intermediary is not liable, whether in contract, tort,
under statute or pursuant to any other right, to any person, including
any person on whose behalf the intermediary provides services in respect
of information in an electronic record, for any action the intermediary
takes in good faith in exercise of the powers conferred by, or as directed
by the Minister under, this section.

Codes of conduct and standards for intermediaries and e-commerce
service providers
29 (1) If a code of conduct is approved or a standard is appointed
by the Minister under this section to apply to intermediaries or e-
commerce service providers, those intermediaries or e-commerce service
providers must comply with the code of conduct or standard.

(2) An intermediary or e-commerce service provider who fails to
comply with an approved code of conduct or appointed standard, shall in
the first instance be given a written warning by the Minister and the
Minister may direct that person to cease and desist or otherwise to

ELECTRONIC TRANSACTIONS ACT 1999

20

correct his practices, and, if that person fails to do so within such period
as may be specified in the direction, he shall be guilty of an offence and
be liable on summary conviction to a fine of $5,000 for each day on
which the contravention continues.

(3) If the Minister is satisfied that a body or organization
represents intermediaries or e-commerce service providers, the Minister
may, by notice given to the body or organization, request that body or
organization to—

(a) develop a code of conduct that applies to intermediaries
or e-commerce service providers and that deals with one
or more specified matters relating to the provision of
services by those intermediaries or e-commerce service
providers; and

(b) provide a copy of that code of conduct to the Minister
within such time as may be specified in the request.

(4) If the Minister is satisfied with the code of conduct provided
under subsection (3), the Minister shall approve the code of conduct by
notice published in the Gazette and thereupon the code of conduct
applies to intermediaries or e-commerce service providers as may be
specified in the notice.

(5) If the Minister is satisfied that—

(a) no body or organization represents intermediaries or e-
commerce service providers; or

(b) a body or organization to which notice is given under
subsection (3) has not complied with the request of the
Minister under that subsection,

the Minister may, by notice published in the Gazette, appoint a standard
that applies to intermediaries or e-commerce service provi-ders.

(6) If the Minister has approved a code of conduct or appointed
a standard that applies to intermediaries or e-commerce service
providers and—

(a) the Minister receives notice from a body or organization
representing intermediaries or e-commerce service
providers of proposals to amend the code of conduct or
standard; or

(b) the Minister no longer considers that the code of conduct
or standard is appropriate,

the Minister may, by notice published in the Gazette, revoke or amend
any existing code of conduct or standard.

ELECTRONIC TRANSACTIONS ACT 1999

21

(7) A code of conduct approved or standard appointed under
this section may relate to one or more of the following matters—

(a) the types of services and of customers that are permitted
to be provided services by intermediaries;

(b) the types of information permitted to be contained in
electronic records for which services are provided by
intermediaries;

(c) the contractual application of relevant codes of conduct
or standards to customers of intermediaries and e-
commerce service providers;

(d) information to be disclosed by intermediaries and e-
commerce service providers including name, address, e-
mail address and contact and registration details;

(e) the use of a quality accreditation mark associated with
Bermuda;

(f) the actions to be taken in the event of customers of
intermediaries or e-commerce service providers sending
bulk, unsolicited electronic records;

(g) business activities prohibited by the Tenth Schedule to
the Companies Act 1981;

(h) publication of material that contravenes the Obscene
Publications Act 1973 or the Criminal Code Act 1907;

(i) procedures for dealing with complaints;

(j) procedures for dispute resolution, including dispute
resolution by electronic means;

(k) such other matters as the Minister may require.

(8) References in this section to intermediaries and e-commerce
service providers include reference to a particular class of intermediary
and a particular class of e-commerce service provider respectively.

PART VIII

E-COMMERCE ADVISORY BOARD

E-Commerce Advisory Board
30 (1) There shall be a board to be known as the "E-Commerce
Advisory Board" for the purpose of providing advice to the Minister on
matters connected with the discharge of his functions under this Act.

ELECTRONIC TRANSACTIONS ACT 1999

22

(2) The Minister shall appoint the members of the Board by
notice published in the Gazette.

(3) The Board shall consist of not fewer than 5 nor more than
11 persons appearing to the Minister to be knowledgeable about
electronic commerce or international business.

(4) The Minister shall designate one of the persons appointed a
member under subsection (2) to be the chairman of the Board.

(5) The Board shall determine its own procedure.

(6) The function of the Board is to advise the Minister on any
matter referred to it by the Minister, or which, of its own initiative, the
Board considers appropriate.

PART IX

GENERAL

Offences, liability of corporate officers
31 Where a corporation is guilty of an offence under this Act or
regulations made under this Act, every person who at the time of the
commission of the offence was a director or officer of the corporation is
guilty of the like offence unless he proves that the contravention took
place without his consent or that he exercised all due diligence to prevent
the commission of the offence.

Regulations
32 (1) The Minister may make regulations generally for any matter
the Minister considers necessary to give effect to this Act and, in
particular,—

(a) prescribing the relevant criteria for the issue of an
accredited certificate;

(b) respecting any matter for which provision may be made
by regulations under this Act.

(2) The regulations may provide that any contravention of a
provision thereof constitutes an offence and may prescribe a penalty for
that offence.

(3) Regulations made under subsection (1) are subject to the
negative resolution procedure.

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23

Consequential amendments
33 The Acts set out in column 1 of the Schedule are amended in the
manner set out in column 2 of that Schedule.

Commencement
34 This Act or any provision thereof comes into operation on such
day as the Minister may appoint by notice published in the Gazette.

ELECTRONIC TRANSACTIONS ACT 1999

24

SCHEDULE (section 33)

Arbitration Act 1986

section 20 Insert after subsection (1) the following—

" (1A) For the purposes of subsection
(1) the examination of witnesses on oath or
affirmation and the administering of oaths
or the taking of affirmations of witnesses
in the arbitration may be conducted by
appropriate electronic means.".

Bermuda International
Conciliation and
Arbitration Act 1993

section 7 Insert next after subsection (3) the
following—

" (4) For the purposes of subsection
(2)—

(a) discussions with one or more
parties;

(b) the hearing of witnesses,
experts or parties;

(c) the inspection of documents,
goods or other property; and

(d) consultation with the
conciliator,

may, as far as is practicable, be conducted
by electronic means and the conciliator
and one or more of the parties are not
required to be physically present in the
same place at any time.".

ELECTRONIC TRANSACTIONS ACT 1999

25

section 21 Insert next after subsection (4) the
following—

" (5) Conciliation proceedings need
not be conducted by way of oral hearing
or oral argument, or conducted on the
basis of documents or other materials, and
may, at the option of the parties, be
conducted by electronic means, including
electronic exchange of documents or by
video conference.".

section 37 Insert next after subsection (4) the
following—

" (5) For the purposes of subsections
(1) and (2), proceedings conducted by way
of oral hearings for the presentation of
evidence or for oral argument, or
conducted on the basis of documents or
other materials, may be conducted by
appropriate electronic means.".

Companies Act 1981

section 129 Insert next after subsection (1A) the
following—

" (1B) Nothing in subsection (1)(e) shall
prohibit an exempted company from
offering goods or services electronically
from a place of business in Bermuda or
through an internet or other electronic
service provider located in Bermuda.".

section 133 Insert next after subsection (4) the
following—

" (5) A company shall be deemed to
engage in or carry on any trade or
business in Bermuda if it makes known by
way of advertisement or by any state-ment
on a web site or by an electronic record as
defined in the Electronic Trans-

ELECTRONIC TRANSACTIONS ACT 1999

26

actions Act 1999 that it may be contacted
at a particular address in Bermuda or if it
uses a Bermudian domain name.".

Computer Misuse Act
1996

section 6 Insert next after section 6 the following—

"Causing computer to cease to function
6A (1) A person is guilty of an offence
if—

(a) he causes a computer to
cease to function permanent-
ly or temporarily; and

(b) at the time he engages in
conduct that causes a
computer to cease to function
permanently or temporarily
he has—

(i) knowledge that the
conduct is un-
authorised;

(ii) the requisite know-
ledge; and

(iii) the requisite intent.

(2) For the purposes of subsection
(1)(b)—

(a) "requisite knowledge" is
knowledge that the conduct
would or would be likely to
cause a computer to cease to
function permanently or
temporarily; and

(b) "requisite intent" is intent to
cause a computer to cease to
function and by so doing—

ELECTRONIC TRANSACTIONS ACT 1999

27

(i) prevent or hinder ac-
cess to the computer;
or

(ii) impair the operation of
the computer,

but the intent need not be directed at a
particular computer.

(3) A person guilty of an offence
under this section is liable—

(a) on summary conviction to
imprisonment for 6 months
or to a fine of $6,000 or to
both;

(b) on conviction or indictment to
imprisonment for 5 years or
to a fine of $20,000 or to
both.".

section 7 In subsection (1), delete "or 5" and
substitute ", 5 or 6A".

Insert next after subsection (3) the
following:

" (3A) "Significant link", in relation to
an offence under section 6A, means—

(a) that the accused was in
Bermuda when he engaged in
conduct which caused the
computer to cease to function
permanently or temporarily;
or

(b) that the computer was in
Bermuda.".

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28

Exempted Partnerships
Act 1992

section 19 Insert next after subsection (2) the fol-
lowing—

" (2A) Nothing in subsection (1)(e) shall
prohibit an exempted partnership from
offering goods or services electronically
from a place of business in Bermuda or
through an internet or other electronic
service provider located in Bermuda.".

Government Authorities
(Fees) Act 1971

First Schedule Insert after the entry relating to the
Development Applications Board the
following—

"E-Commerce Advisory Board established
under section 30 of the Electronic
Transactions Act 1999".

Interpretation Act 1951

section 7(1) Insert after the definition of "public place"
the following—

""record" includes a record created, stored,
generated, received or communicated
by electronic, magnetic, optical or other
similar means;".

Overseas Partnerships
Act 1995

section 11 Insert next after subsection (2) the
following—

" (2A) Nothing in subsection (1)(e) shall
prohibit an overseas partnership from
offering goods or services electronically

ELECTRONIC TRANSACTIONS ACT 1999

29

from a place of business in Bermuda or
through an internet or other electronic
service provider located in Bermuda.

(2B) An overseas partnership shall be
deemed to engage in or carry on any trade
or business in Bermuda if it makes known
by way of advertisement or by any
statement on a web site or by an electronic
record as defined in the Electronic
Transactions Act 1999 that it may be
contacted at a particular address in
Bermuda or if it uses a Bermudian domain
name.".