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SNL2001 CHAPTER E-5.2

ELECTRONIC COMMERCE ACT

Amended:

2009 cR-10.01 s42

CHAPTER E-5.2

AN ACT TO FACILITATE ELECTRONIC COMMERCE BY REMOVING BARRIERS TO THE USE OF ELECTRONIC COMMUNICATION

(Assented to December 13, 2001 )

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Electronic Commerce Act .

2001 cE-5.2 s1

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Definitions

        2. In this Act

             (a)  "electronic" includes created, recorded, transmitted or stored in digital form or in another intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means and "electronically" has a corresponding meaning;

             (b)  "electronic agent" means a computer program or other electronic means used to initiate an action or to respond to electronic documents or actions without review by a natural person at the time of the response or action;

             (c)  "electronic signature" means electronic information that a person has created or adopted in order to sign a document and that is in, attached to or associated with the document; and

             (d)  "public body" means

                      (i)  the government or a department of the government of the province,

                     (ii)  a board, commission, corporation or other body the majority of the members of which, or the majority of the members of the board of directors of which, are appointed by the Lieutenant-Governor in Council,

                    (iii)  a municipality under the Municipalities Act, 1999 , the City of Mount Pearl as established by the City of Mount Pearl Act , the City of St. John's as established by the City of St. John's Act and the City of Corner Brook as established by the City of Corner Brook Act , and

                    (iv)  a body designated in the regulations as a public body.

2001 cE-5.2 s2

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Interpretation

        3. A provision of this Act that relates to the satisfaction of a requirement of law applies whether the law creates an obligation or provides a consequence for doing something or for not doing something.

2001 cE-5.2 s3

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Application

        4. (1) This Act does not apply to

             (a)  a will and a codicil to a will;

             (b)  a trust created by a will or by a codicil to a will;

             (c)  a power of attorney, to the extent that it deals with the financial affairs or personal care of an individual;

             (d)  [Rep. by 2009 cR-10.01 s42]

             (e)  a negotiable instrument, except as provided in Part III; and

              (f)  a type of document designated by regulation.

             (2)  Nothing in this Act limits the operation of a law that expressly authorizes, prohibits or regulates the use of electronic information.

             (3)  For the purpose of subsection (2), the use of the words "in writing" and "signature" or words of similar meaning shall not be interpreted as prohibiting the use of electronic information.

2001 cE-5.2 s4; 2009 cR-10.01 s42

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Crown

        5. This Act binds the Crown.

2001 cE-5.2 s5

PART I
PROVISION AND RETENTION OF INFORMATION

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Legal recognition

        6. Information shall not be denied legal effect or enforceability by reason only that it is electronic.

2001 cE-5.2 s6

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Use not mandatory

        7. (1) Nothing in this Act requires a person to use or accept electronic information, but a person’s consent to do so may be inferred from the person’s conduct.

             (2)  Notwithstanding subsection (1), the consent of a public body to accept electronic information may not be inferred by its conduct and shall be communicated in a manner accessible to the public or to those likely to communicate with it for a particular purpose.

2001 cE-5.2 s7

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Requirement that information be in writing

        8. A requirement under a law that information be in writing is satisfied by electronic information if the information is accessible and capable of being retained for subsequent reference.

2001 cE-5.2 s8

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Requirement to provide information in writing

        9. (1) A requirement under a law for a person to provide information in writing to another person is satisfied by the provision of electronic information where the electronic information that is provided to the other person is accessible by the other person, and capable of being retained by the other person for subsequent reference.

             (2)  Where the information is to be provided to a public body, the requirement in subsection (1) is only met where

             (a)  the public body to which the information is to be provided has consented to accept electronic information in satisfaction of the requirement; and

             (b)  the electronic information meets the standards and acknowledgement rules established by the public body.

2001 cE-5.2 s9

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Requirement to provide information in a specific form

      10. (1) A requirement under a law for a person to provide information to another person in a specified non-electronic form is satisfied by the provision of electronic information, where

             (a)  the information is provided in the same or substantially the same form as the non-electronic form; and

             (b)  the electronic information is accessible by the other person, and capable of being retained by the other person for subsequent reference.

             (2)  Where the information is to be provided to a public body, the requirement in subsection (1) is only met where

             (a)  the public body to which the information is to be provided has consented to accept electronic information in satisfaction of the requirement; and

             (b)  the electronic information meets the standards and acknowledgement rules established by the public body.

2001 cE-5.2 s10

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Signatures

      11. (1) A requirement under a law for the signature of a person is satisfied by an electronic signature.

             (2)  Where the signature is on a type of information designated in the regulations, the requirement in subsection (1) is only met where, in view of the relevant circumstances, including a relevant agreement and the time the electronic signature was made,

             (a)  the electronic signature is reliable for the purpose of identifying the person; and

             (b)  the association of the electronic signature with the relevant information is reliable.

             (3)  Where the signature or signed document is to be provided to a public body, the requirement in subsection (1) is only met where

             (a)  the public body to which the information is to be provided has consented to accept electronic signatures; and

             (b)  the electronic signature meets the standards and requirements as to method and reliability of the signature established by the public body.

             (4)  This section applies to an endorsement as if it was a signature and an endorsed document as if it was a signed document.

2001 cE-5.2 s11

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Requirement to provide originals

      12. (1) A requirement under a law for a person to present or retain a document in original form is satisfied by the provision or retention of electronic information where

             (a)  there is a reliable assurance as to the integrity of the electronic information from the time the information to be presented or retained was first created in its final form, whether as a paper document or as electronic information; and

             (b)  the electronic information is accessible to the person, and capable of being retained by the person for subsequent reference.

             (2)  Where the document in original form is to be provided to a public body, the requirement in subsection (1) is only met where

             (a)  the public body to which the information is to be provided has consented to accept electronic information in satisfaction of the requirement; and

             (b)  the electronic information meets the standards and acknowledgement rules established by the public body.

             (3)  For the purpose of subsection (1),

             (a)  the criterion for assessing integrity is whether the information has remained complete and unaltered, apart from the introduction of changes that arise in the normal course of communication, storage and display; and

             (b)  the standard of reliability required shall be assessed in view of the purpose for which the information was created and other relevant circumstances.

2001 cE-5.2 s12

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Capability to retain

      13. Electronic information is considered not to be capable of being retained where the person providing the electronic information inhibits the printing or storage of the electronic information by the recipient.

2001 cE-5.2 s13

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Retention of documents

      14. (1) A requirement under a law to retain a document is satisfied by the retention of electronic information where

             (a)  the electronic information is retained in the format in which it was made, sent or received or in a format that does not materially change the electronic information that was originally created, sent or received; and

             (b)  the electronic information will be accessible, and capable of being retained for subsequent reference, by a person who is entitled to have access to the information or who is authorized to require its production.

             (2)  Where the electronic information was sent or received, the requirement in subsection (1) is only met where information that identifies the origin and destination of the electronic information and the date and time when it was sent or received is also retained.

2001 cE-5.2 s14

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Copies

      15. Where a document may be submitted electronically, a requirement under a law for one or more copies of a document to be submitted to a single addressee at the same time is satisfied by submitting a single version electronically.

2001 cE-5.2 s15

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Posting and display

      16. Nothing in this Part limits the operation of a requirement under a law for information to be posted or displayed in a specific manner or for information or document to be transmitted by a specified method.

2001 cE-5.2 s16

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Forms

      17. (1) Where an Act or regulation requires a person to communicate information, the minister of the Crown responsible for the Act or regulation may prescribe electronic means to be used for the communication of the information and the use of those means satisfies that requirement.

             (2)  Where an Act or regulation provides for the use of a form, the authority responsible for the form may make an electronic form that is substantially the same as the form provided for and the electronic form shall be considered to be the form, the use of which is provided for by the Act or regulation.

             (3)  An Act or regulation that authorizes the prescription of a form or the manner of filing of a form shall be considered to include the authority to prescribe an electronic form or electronic means of filing a form.

2001 cE-5.2 s17

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Collection and storage

      18. (1) In the absence of an express provision in an Act or regulation that electronic means shall not be used or that they shall be used in specified ways, a minister of the Crown or an entity referred to in subparagraphs 2(d)(ii) to (iv) may use electronic means to create, collect, receive, store, transfer, distribute, publish or otherwise deal with information.

             (2)  For the purpose of subsection (1), the use of words and expressions like "in writing" and "signature" does not by itself constitute an express provision that electronic means shall not be used.

2001 cE-5.2 s18

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Electronic payment

      19. (1) A payment to the province that is authorized or required to be made under a law may be made electronically in a manner specified by the Comptroller General of Finance.

             (2)  A payment by the province may be made electronically in a manner specified by the Comptroller General of Finance.

             (3)  A payment to or by a public body other than the province that is authorized or required to be made under a law may be made electronically in a manner specified by the head of that public body.

2001 cE-5.2 s19

PART II
COMMUNICATION OF ELECTRONIC INFORMATION

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Formation and operation of contracts

      20. (1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed

             (a)  by means of electronic information; or

             (b)  by an action in electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.

             (2)  A contract shall not be denied legal effect or enforceability by reason only that electronic means or information were used in its formation.

2001 cE-5.2 s20

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Involvement of electronic agents

      21. A contract may be formed by the interaction of an electronic agent and a natural person or by the interaction of electronic agents.

2001 cE-5.2 s21

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Errors when dealing with electronic agents

      22. A transaction entered into by a natural person interacting with the electronic agent of another person has no legal effect and is not enforceable if the natural person made a material error in the electronic information provided and

             (a)  the electronic agent did not provide the natural person with an opportunity to prevent or correct the error;

             (b)  the natural person notifies the other person of the error in the electronic information as soon as practicable when the natural person learns of it;

             (c)  the natural person takes reasonable steps, including steps that conform to the other person's instructions, to return the consideration received as a result of the error or to destroy the consideration; and

             (d)  the natural person has not used or received a material benefit or value from the consideration received from the other person.

2001 cE-5.2 s22

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Time and place

      23. (1) Unless the originator and the addressee agree otherwise, electronic information is sent when it enters an information system outside the control of the originator or, if the originator and the addressee are in the same information system, when it is capable of being retrieved and processed by the addressee.

             (2)  Electronic information is presumed to be received by the addressee,

             (a)  when the electronic information enters an information system designated or used by the addressee for the purpose of receiving information of the type sent and it is capable of being retrieved and processed by the addressee; or

             (b)  if the addressee has not designated or does not use an information system for the purpose of receiving information of the type sent, when the addressee becomes aware of the electronic information in the addressee's information system and the electronic information is capable of being retrieved and processed by the addressee.

             (3)  Unless the originator and the addressee agree otherwise, electronic information is considered to be sent from the originator's place of business and received at the addressee's place of business.

             (4)  For the purpose of subsection (3),

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

             (b)  where the originator or addressee does not have a place of business, a reference to "place of business" in subsection (3) shall be read as a reference to "habitual residence".

2001 cE-5.2 s23

PART III
CARRIAGE OF GOODS

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Definition

      24. In this Part, "goods" means goods as defined in the Sale of Goods Act .

2001 cE-5.2 s24

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Action related to carriage of goods contract

      25. This Part applies to an action in connection with a contract of carriage of goods, including

             (a)  furnishing the marks, number, quantity or weight of goods;

             (b)  stating or declaring the nature or value of goods;

             (c)  issuing a receipt for goods;

             (d)  confirming that goods have been loaded;

             (e)  giving instructions to a carrier of goods;

              (f)  claiming delivery of goods;

             (g)  authorizing release of goods;

             (h)  giving notice of loss of, or damage to, goods;

              (i)  undertaking to deliver goods to a named person or a person authorized to claim delivery;

              (j)  granting, acquiring, renouncing, surrendering, transferring or negotiating rights in goods;

             (k)  notifying a person of terms and conditions of a contract of carriage of goods;

              (l)  giving a notice or statement in connection with the performance of a contract of carriage of goods; and

            (m)  acquiring or transferring rights and obligations under a contract of carriage of goods.

2001 cE-5.2 s25

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Documents

      26. (1) A requirement under the laws of the province that an action referred to in section 25 be carried out in writing or by using a paper document is satisfied if the action is carried out using electronic information.

             (2)  Notwithstanding subsection (1), where a right is to be granted to or an obligation is to be acquired by one person and no other person, and a provision of a law requires that the right or obligation must be conveyed to that person by the transfer or use of a written document, that requirement is satisfied where the right or obligation is conveyed through the use of electronic information created by a method that gives reliable assurance that the right or obligation has become the right or obligation of that person and no other person.

             (3)  For the purposes of subsection (2), the standard of reliability required shall be assessed in view of the purpose for which the right or obligation was conveyed and in view of the relevant circumstances, including any relevant agreement.

             (4)  Where electronic information is used to accomplish an action referred to in paragraph 25(j) or (m), no writing used to effect the action is valid unless the use of electronic information has been terminated and replaced by the use of writing.

             (5)  A document in writing issued in the circumstances in subsection (4) shall contain a statement of the termination, and the replacement of the use of electronic information by writing shall not affect the rights or obligations of the parties involved.

             (6)  A rule of law shall not be inapplicable to a contract of carriage of goods by reason only that the contract is evidenced in electronic information instead of in writing.

2001 cE-5.2 s26

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Regulations

      27. The Lieutenant-Governor in Council may make regulations

             (a)  designating a body as a public body under subparagraph 2(d)(iv);

             (b)  designating a type of document to be excluded from the application of this Act under paragraph 4(1)(f); and

             (c)  designating a type of document to be subject to the additional requirements in subsection 11(2).

2001 cE-5.2 s27