Electronic Commerce Act 2000

PART 1 Preliminary And General

1. Short title and commencement.

1.—(1) This Act may be cited as the Electronic Commerce Act, 2000.

(2) This Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Enterprise, Trade and Employment, may appoint by order or orders, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions.

2. Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“accreditation” means an accreditation under section 29(2);

“addressee”, in relation to an electronic communication, means a person or public body intended by the originator to receive the electronic communication, but does not include a person or public body acting as a service provider in relation to the processing, receiving or storing of the electronic communication or the provision of other services in relation to it;

“advanced electronic signature” means an electronic signature—

(a) uniquely linked to the signatory,

(b) capable of identifying the signatory,

(c) created using means that are capable of being maintained by the signatory under his, her or its sole control, and

(d) linked to the data to which it relates in such a manner that any subsequent change of the data is detectable;

“certificate” means an electronic attestation which links signature verification data to a person or public body, and confirms the identity of the person or public body;

“certification service provider” means a person or public body who issues certificates or provides other services related to electronic signatures;

F1[“Commission”means the Commission for Communications Regulation established under the Communications Regulation Act 2002;]

“Directive” means the European Parliament and Council Directive 1999/93/EC of 13 December, 1999^1;

“electronic” includes electrical, digital, magnetic, optical, electro-magnetic, biometric, photonic and any other form of related technology;

“electronic communication” means information communicated or intended to be communicated to a person or public body, other than its originator, that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means or in electronic form, but does not include information communicated in the form of speech unless the speech is processed at its destination by an automatic voice recognition system;

“electronic contract” means a contract concluded wholly or partly by means of an electronic communication;

“electronic signature” means data in electronic form attached to, incorporated in or logically associated with other electronic data and which serves as a method of authenticating the purported originator, and includes an advanced electronic signature;

“excluded law” means a law referred to in section 10;

“information” includes data, all forms of writing and other text, images (including maps and cartographic material), sound, codes, computer programmes, software, databases and speech;

“information system” means a system for generating, communicating, processing, sending, receiving, recording, storing or displaying information by electronic means;

“legal proceedings” means civil or criminal proceedings, and includes proceedings before a court, tribunal, appellate body of competent jurisdiction or any other body or individual charged with determining legal rights or obligations;

“Minister” means the Minister for Public Enterprise;

“originator”, in relation to an electronic communication, means the person or public body by whom or on whose behalf the electronic communication purports to have been sent or generated before storage, as the case may be, but does not include a person or public body acting as a service provider in relation to the generation, processing, sending or storing of that electronic communication or providing other services in relation to it;

“person” does not include a public body;

“prescribed” means prescribed by regulations made under section 3;

“public body” means—

(a) a Minister of the Government or a Minister of State,

(b) a body (including a Department of State but not including a non-government organisation) wholly or partly funded out of the Central Fund or out of moneys provided by the Oireachtas or moneys raised by local taxation or charges, or

(c) a commission, tribunal, board or body established by an Act or by arrangement of the Government, a Minister of the Government or a Minister of State for a non-commercial public service or purpose;

“qualified certificate” means a certificate which meets the requirements set out in Annex I and is provided by a certification service provider who fulfils the requirements set out in Annex II;

“secure signature creation device” means a signature creation device which meets the requirements set out in Annex III;

“signatory” means a person who, or public body which, holds a signature creation device and acts in the application of a signature by use of the device either on his, her or its own behalf or on behalf of a person or public body he, she or it represents;

“signature creation data” means unique data, such as codes, passwords, algorithms or private cryptographic keys, used by a signatory or other source of the data in generating an electronic signature;

“signature creation device” means a device, such as configured software or hardware used to generate signature creation data;

“signature verification data” means data, such as codes, passwords, algorithms or public cryptographic keys, used for the purposes of verifying an electronic signature;

“signature verification device” means a device, such as configured software or hardware used to generate signature verification data.

(2) In the application of this Act, “writing”, where used in any other Act or instrument under an Act (and whether or not qualified by reference to it being or being required to be under the hand of the writer or similar expression) shall be construed as including electronic modes of representing or reproducing words in visible form, and cognate words shall be similarly construed.

(3) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference is made, unless it is indicated that a reference to some other provision is intended,

(c) a reference to an enactment shall, except to the extent that the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, and

(d) a reference to an Annex by number is a reference to the Annex so numbered to the Directive and included in the Schedule to this Act.

(4) Where in any legal proceedings the question of whether—

(a) a body is a non-government organisation, or

(b) a body, commission, tribunal or board is or was established by an Act or by arrangement of the Government, a Minister of the Government or a Minister of State for a non-commercial service or purpose,

is in issue then, for the purpose of establishing whether it is or is not a public body as defined in subsection (1), a document signed by the Minister, a Minister of the Government or a Minister of State declaring that—

(i) he or she is the appropriate Minister for determining whether the body is or is not a non-government organisation, and that in fact it is or is not such an organisation, or

(ii) he or she is the appropriate Minister for determining whether the body, commission, tribunal or board was or was not so established for a non-commercial service or purpose, and that in fact it was or was not so established,

is sufficient evidence of those facts, until the contrary is shown, and the Minister, Minister of the Government or Minister of State may make such a declaration.

3. Regulations.

3.—(1) The Minister may make regulations prescribing any matter or thing referred to in this Act as prescribed or to be prescribed, or in relation to any matter referred to in this Act as the subject of regulation.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or for giving full effect to this Act.

4. Laying of orders and regulations before Houses of Oireachtas.

4.—F2[Every order made under this Act (other than an order made under section 1(2)), and every regulation made under section 3 or 32,] shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under it.

5. Expenses of Minister.

5.—Expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

6. Prosecution of offenses.

6.—(1) Summary proceedings for offences under this Act or a regulation made under section 3 may be brought and prosecuted by the Minister or a person or public body prescribed by the Minister for that purpose.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act or a regulation made under section 3 may be commenced at any time within 12 months from the date on which evidence that, in the opinion of the person or public body by whom the proceedings are brought, is sufficient to justify the bringing of the proceedings, comes to that person's or public body's knowledge.

(3) For the purpose of subsection (2), a document signed by or on behalf of the person or public body bringing the proceedings as to the date on which the evidence referred to in that subsection came to his, her or its knowledge is prima facie evidence thereof and in those or any other legal proceedings a document purporting to be issued for the purpose of this subsection and to be so signed is taken to be so signed and shall be admitted as evidence without further proof of the signature of the person or public body purporting to sign it.

7. Offences by bodies corporate.

7.—Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, shadow director (as defined in section 3(1) of the Companies Act, 1990), manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

8. Penalties.

8.—A person or public body guilty of an offence under this Act for which no penalty other than by this section is provided shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £500,000 or, at the discretion of the court, to imprisonment for a term not exceeding 5 years, or to both the fine and the imprisonment.

PART 2 Legal Recognition and Non-Discrimination in respect of Electronic Signatures, Originals, Contracts and Related Matters

9. Electronic form not to affect legal validity or enforceability.

9.—Information (including information incorporated by reference) shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, whether as an electronic communication or otherwise.

10. Excluded laws.

10.—(1) Sections 12 to 23 are without prejudice to—

(a) the law governing the creation, execution, amendment, variation or revocation of—

(i) a will, codicil or any other testamentary instrument to which the Succession Act, 1965, applies,

(ii) a trust, or

(iii) an enduring power of attorney,

(b) the law governing the manner in which an interest in real property (including a leasehold interest in such property) may be created, acquired, disposed of or registered, other than contracts (whether or not under seal) for the creation, acquisition or disposal of such interests,

(c) the law governing the making of an affidavit or a statutory or sworn declaration, or requiring or permitting the use of one for any purpose, or

(d) the rules, practices or procedures of a court or tribunal,

except to the extent that regulations under section 3 may from time to time prescribe.

(2) Where the Minister is of the opinion that—

(a) technology has advanced to such an extent, and access to it is so widely available, or

(b) adequate procedures and practices have developed in public registration or other services, so as to warrant such action, or

(c) the public interest so requires,

he or she may, after consultation with such Minister or Ministers as in the Minister's opinion has or have a sufficient interest or responsibility in relation to the matter, by regulations made under section 3, for the purpose of encouraging the efficient use of electronic communication facilities and services in commerce and the community generally while at the same time protecting the public interest, extend the application of this Act or a provision of this Act to or in relation to a matter specified in subsection (1) (including a particular aspect of such a matter) subject to such conditions as he or she thinks fit, and the Act as so extended shall apply accordingly.

(3) Without prejudice to the generality of subsection (2), the regulations may apply to a particular area or subject, or for a particular time, in the nature of a trial of technology and procedures.

11. Certain laws not to be affected.

11.—Nothing in this Act shall prejudice the operation of—

(a) any law relating to the imposition, collection or recovery of taxation or other Government imposts, including fees, fines and penalties,

(b) the Companies Act, 1990 (Uncertificated Securities) Regulations, 1996 (S.I. No. 68 of 1996) or any regulations made in substitution for those regulations,

(c) the Criminal Evidence Act, 1992, or

(d) F3[…] the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 No. 27 of 1995).

12. Writing.

12.—(1) If by law or otherwise a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from the information not being in writing) or permitted to give information in writing (whether or not in a form prescribed by law), then, subject to subsection (2), the person or public body may give the information in electronic form, whether as an electronic communication or otherwise.

(2) Information may be given as provided in subsection (1) only—

(a) if at the time the information was given it was reasonable to expect that it would be readily accessible to the person or public body to whom it was directed, for subsequent reference,

(b) where the information is required or permitted to be given to a public body or to a person acting on behalf of a public body and the public body consents to the giving of the information in electronic form, whether as an electronic communication or otherwise, but requires—

(i) the information to be given in accordance with particular information technology and procedural requirements, or

(ii) that a particular action be taken by way of verifying the receipt of the information,

if the public body's requirements have been met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and

(c) where the information is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body—if the person to whom the information is required or permitted to be given consents to the information being given in that form.

(3) Subsections (1) and (2) are without prejudice to any other law requiring or permitting information to be given—

(a) in accordance with particular information technology and procedural requirements,

(b) on a particular kind of data storage device, or

(c) by means of a particular kind of electronic communication.

(4) This section applies to a requirement or permission to give information whether the word “give”, “send”, “forward”, “deliver”, “serve” or similar word or expression is used.

(5) In this section, “give information” includes but is not limited to—

(a) make an application,

(b) make or lodge a claim,

(c) make or lodge a return,

(d) make a request,

(e) make an unsworn declaration,

(f) lodge or issue a certificate,

(g) make, vary or cancel an election,

(h) lodge an objection,

(i) give a statement of reasons,

(j) record and disseminate a court order,

(k) give, send or serve a notification.

13. Signatures.

13.—(1) If by law or otherwise the signature of a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from there being no signature) or permitted, then, subject to subsection (2), an electronic signature may be used.

(2) An electronic signature may be used as provided in subsection (1) only—