Electronic Communications (Jersey) Law 2000

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Published: 2008-01-01

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Electronic Communications (Jersey) Law 2000

Revised Edition

04.280

Showing the law as at 1 January 2008

This is a revised edition of the law

Electronic Communications (Jersey) Law 2000

Arrangement

Article

PART 1

INTERPRETATION

1            Interpretation

2            Changes and advancements in technology

PART 2

GENERAL PRINCIPLES

3            Legal recognition

4            Formation of contract

5            Time of dispatch of electronic communications

6            Time of receipt of electronic communications

7            Place of dispatch and receipt of electronic communications

8            Attribution of electronic communications

9            Admissibility in evidence of information in electronic form

PART 3

REQUIREMENTS UNDER ENACTMENTS

10          Exemptions – Part 3

11          Giving information in writing

12          Requirement for signature

13          Producing a document

14          Recording of information

15          Inspection of information

16          Retention of document

17          Retention of information contained in electronic communication

18          Copyright

PART 4

SERVICE PROVIDERS

19          Protection of service providers from criminal liability

20          Protection of service providers from civil liability

21          Obligations of service providers

PART 5

RULES AND ORDERS

22          Rules of Court

23          Orders

PART 6

CITATION

24          Citation

Supporting Documents

Endnotes

Table of Legislation History

Table of Renumbered Provisions

Table of Endnote References



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 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;

“Minister” means the Minister for 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[2];

(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.[3]

(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      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

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.

PART 3

REQUIREMENTS UNDER ENACTMENTS

10    Exemptions – Part 3

(1)    The Minister 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.

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, if the entity consents to the information being given by way of an electronic communication and, where 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.[4]

(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.

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, if the entity consents to the signature being given by way of an electronic communication and, where 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 or her approval of the information communicated.[5]

(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.

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, if the entity consents to the production of the document by means of an electronic form of the document and, where 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.[6]

(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[7] 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)    The Subordinate Legislation (Jersey) Law 1960[8] applies to Orders made under this Law.

(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.

Endnotes

Table of Legislation History



Legislation



Year and No



Commencement



Electronic Communications (Jersey) Law 2000



L.34/2000



1 January 2001 (R&O.136/2000)



Employment of States of Jersey Employees (Consequential, Amendment, Repeal, Transitional and Savings Provisions) (Jersey) Regulations 2005



R&O.155/2005



9 December 2005



Electronic Communications (Amendment) (Jersey) Law 2007



L.15/2007



17 June 2007



Table of Renumbered Provisions



Original



Current



1 (4),(5),(6)



spent, omitted from this revised edition



Table of Endnote References



[1]



The functions of the Economic Development Committee were transferred to the Minister for Economic Development on the 9th December 2005 by the States of Jersey (Transfer of Functions from Committees to Ministers) (Jersey) Regulations 2005 chapter 16.800.30.



[2]



chapter 16.325



[3] Article 1(1)



amended by R&O.155/2005



[4] Article 11(1)



amended by L.15/2007



[5] Article 12(1)



amended by L.15/2007



[6] Article 13(1)



amended by L.15/2007



[7]



chapter 07.770



[8]



chapter 15.720