Part II: Proposed Legislation in More Detail
Scope of the Bill
The Issue
1. The Bill will enact a general rule that where legislation currently requires dealings to take place in paper format (i.e. in writing, and/or to be signed), those dealings will also be able to take place electronically if all the parties consent. The Bill will also provide that statutory obligations to keep records of various kinds can be met using electronic records, and that where a statute requires documents to be produced (e.g. a birth certificate), an electronic version can be used.
2. However there are some circumstances where it may not be appropriate for documents to be in electronic form (e.g. wills), or for dealings to take place electronically even where all parties consent (e.g. repossession notices to consumers), or for records to be kept or produced electronically rather than using a paper original. In particular, paper-based transactions or records may provide means of assuring the integrity of a certain transaction, or address imbalances between the parties involved to a transaction, that might not be appropriately addressed by an electronic transaction or record.
3. Thus the basic issue in relation to the scope of the Bill is to identify any statutory requirements that the Bill's general rules would apply to that should be excluded from its operation, so that electronic technology cannot be used to meet the relevant statutory obligations, which will continue to require paper-based methods.
The Proposed Solution
4. It is proposed that the Bill will apply to all statutory requirements for use of writing, signatures, recording information, retaining information and producing documents unless those statutory requirements are expressly excluded from the scope of the Bill. That is, it will be of general application, subject to a limited number of specifically identified exceptions. The Bill will not be limited to just commercial activities.
Rationale
General Application (Bill Is Not Limited to Commercial Activities)
5. The origins of the proposed Bill come from work done by UNCITRAL and the Law Commission on electronic commerce. However a clear pattern has emerged overseas of enacting legislation which is of general application, and is not limited to commercial transactions. Australia, Canada, Singapore and the UK have either enacted, or are in the process of enacting, legislation with a broad scope.
6. The Ministry recommends that, following these overseas models and building on the work of the Law Commission and UNCITRAL, the Bill should be of general application. This approach will ensure that the benefits which are available under the Bill (such as reduced compliance costs) are not limited to one sector of the community. Additional reasons for extending the Bill to a wider range of dealings were summarised in Part I of this paper.
The Need for Exceptions
7. However if the Bill is of general application, and is not limited to particular statutes or particular spheres of activity, it is necessary to consider whether there are any statutes to which it should not apply because electronic technology is inappropriate in that particular context. The Ministry anticipates that the Bill will specify a number of statutory provisions which are excluded from the Bill, where paper-based methods will continue to be required. Identifying necessary exceptions is an important part of this consultation process.
8. In considering what exceptions are required, it is important to bear in mind the:
- policy goal of allowing use of modern technology unless it is clearly inappropriate. Exceptions need to be clearly justified; and
- fact that the Bill will only allow communications to take place using electronic means if the recipient has agreed (expressly or impliedly) to receive such communications electronically, and also to the format used. Thus there is no need for an exception simply because some recipients of communications will not be able or willing to receive them electronically - that is dealt with by the consent requirement. In particular, a department should not propose an exception simply because it is not ready to deal with the public using electronic technology. The Bill will not force it to do so unless and until it is ready.
9. The requirement for consent in relation to electronic communications means that statutory obligations to provide information in writing should not be excluded unless it is clear that consent is not a sufficient safeguard: this would be the case only if the requirement to use writing is imposed for the benefit of a third party rather than the parties to the communication itself, or is imposed to protect a disadvantaged party (e.g. a consumer) whose consent may not be fully informed or voluntary, and should therefore not be decisive.
10. Other "writing" requirements that do not involve direct communication with a specified person (e.g. the definition of a bill of exchange as an order to pay "in writing") require consideration of the policy goal of requiring writing in this context, and whether that goal is compromised in any way by the use of functionally equivalent electronic technologies, and if so, how that should be addressed.
11. A similar analysis applies in relation to signature requirements, bearing in mind that it is up to the recipient of a communication which must be "signed" to decide whether or not to accept electronic signatures. Once again, therefore, so far as signature requirements in the context of communications are concerned, the focus must be on whether there are any circumstances where the recipient's consent is not a sufficient safeguard. Where statutory requirements for signatures do not relate to communications, but rather to verification of essentially unilateral documents (consider wills, affidavits etc), it is necessary to ask what the policy goal of requiring signatures is, and whether it is compromised in any way by the use of functionally equivalent electronic technologies, and if so, how that should be addressed.
12. Statutory requirements in relation to recording information and retaining records of that information require a slightly different analysis. There is no issue of consent here: if the Bill applies, the person subject to the record-keeping obligation will be able to decide unilaterally to record the relevant information electronically, and to retain records in electronic form. Where the original record is paper-based, it will also be possible to destroy the paper original if an adequate electronic copy is retained. The test for whether an exception is needed in relation to record-keeping and retention requirements involves four steps:
- first, it is necessary to ask whether there is any appreciably greater risk of loss of records or unreliability (including falsification) of records, or of difficulty in accessing the records for the intended purposes, if they can be kept in electronic form, even with the safeguards in the Bill;
- second, it is necessary to ask whether any concerns of this kind are sufficient to justify an exclusion from the Bill, bearing in mind the basic policy goal of facilitating use of modern technologies;
- third, it is important to ask whether those concerns could be addressed by imposing additional safeguards, either in the Bill or in regulations, in relation to the manner in which the records in question are made or kept or made available; and
- finally, in the light of this analysis, the case for an exclusion must be balanced against the case for facilitating use of more efficient technology, and consideration given to the appropriate scope of any possible exclusion.
13. Turning to obligations to produce documents (e.g. an original birth certificate, or academic record) the question is whether the policy goal of the requirement to produce the document will be compromised by allowing electronic performance of the requirement, even with the consent of the specified recipient. No agency will be compelled by the Bill to accept electronic alternatives - so a desire not to do so is not a sufficient reason for an exclusion. An exclusion would be justified only if the rationale for production of the document is to benefit or protect someone other than the recipient, or is intended to protect a disadvantaged recipient whose consent is not a sufficient safeguard (obviously, no public sector recipient falls into this category).
Specific Exceptions Currently under Consideration
14. The Ministry proposes to include the following exceptions in the Bill:
- wills;
- affidavits and statutory declarations; and
- negotiable instruments;
15. In addition, a number of overseas jurisdictions have excluded the following matters from electronic transactions legislation, or from aspects of the legislation:
- dealings in land generally;
- mandatory provisions in consumer protection legislation designed to protect consumers (see below);
- provisions requiring the production of documents for immigration or citizenship purposes;
- provisions relating to the practice or procedure of any Court or tribunal; and
- documents of title.
16. The Ministry invites comment on whether the exceptions listed above should be included in the Bill, and on the appropriate scope of any such exception.
Consumer Protection
17. A number of statutory provisions impose writing and signature requirements in relation to information provided to consumers, and agreements entered into by consumers. These provisions are intended to ensure that the matter is properly drawn to the consumer's attention, and that there is a genuine opportunity to consider the issue and its consequences. In some contexts, the requirement is also imposed to bring home to the consumer the significance of the relevant term or information. Another relevant goal may be to ensure that the consumer has a permanent and readily accessible record of the transaction.
18. It is not possible to contract out of most of these consumer protection requirements. The basic approach is that these are minimum protections that no well-informed rational consumer would agree to waive, and that allowing contracting out would create opportunities for exploitation of the ignorant, disadvantaged or careless consumer. Consideration needs to be given to whether requirements of this kind should or should not be capable of being performed electronically. On the one hand, there is the potential for significant cost savings and increased convenience for consumers if they can complete a transaction on-line, without the additional cost and delay involved in needing to perform one or more steps on paper. On the other hand, there may be a risk that consents to use of electronic forms of communication for e.g. repossession notices will not be genuine or will be abused, and that the policy goal of the legislation will be defeated if a repossession notice sent to an email address which was provided in the contract but is not regularly checked, or no longer exists, is treated as sufficient.
19. The Ministry of Consumer Affairs intends to raise some issues with respect to electronic transactions in the context of consumer credit as part of their review of consumer credit law, and public comment will be sought in June 2000. However, the Ministry seeks comment on whether particular statutes or legislative provisions should be exempted from the effect of the Bill, at least in the interim, to ensure consumers are protected.
Further Areas for Exclusion
20. Government departments should give careful consideration as to whether all or part of any of the legislation which they administer or under which they operate should be specifically excluded from this Bill.
21. Interested parties are also invited to indicate whether any additional exclusions should be made.
22. Exclusions to the Bill should only be proposed on policy grounds, in the light of the tests set out above. It is emphasised that exceptions should not be proposed for reasons of timing or lack of electronic capabilities within a department which mean that that department is not in a position to deal with the public electronically in the near future, or because of format requirements applicable to communications with that department: that concern is adequately addressed by the requirement that the department consent to receipt of electronic communications, and to their format.
Questions
23. Do you agree that the Bill should be of general application, but contain specific exceptions for some statutory requirements?
24. Do you agree with the proposed exceptions?
25. Should any of the other exceptions which apply to electronic transaction legislation overseas be included in the Bill? If so, why? How should the exceptions be defined?
26. Should there be any further exceptions? If so, why? How should these exceptions be defined?
Validity of Electronic Communications
The Issue
27. New Zealand law is silent on the legal validity of electronic transactions. This means that a situation could arise in which a transaction was held to be legally invalid simply because it took place in electronic form. Because the law is not clear whether or not an electronic transaction will be held to be valid, some parties may be reluctant to use electronic communications to conclude a transaction.
Proposed Solution
28. The Ministry proposes to include a provision in the Bill to clarify that electronic transactions will not be invalid merely because they involve one or more electronic communications.
Rationale
29. These rules are intended to reflect the fundamental principle that there should be no disparity of treatment between electronic communications and communications taking place through paper documents, where the electronic communication is the functional equivalent of the paper document.
30. It is proposed that the rules to be included in the Bill be similar to those contained in section 8 of the Australian Electronic Transactions Act 1999 ("the Australian Act").
31. Section 8 of the Australian Act is based on Article 5 of the UNCITRAL Model Law ("the Model Law"), and provides that electronic communications and information referred to in electronic communications should not be denied legal effect simply because they are in electronic form. (Section 8 also subsumes Article 11 of the Model Law, relating to the formation of contracts by electronic means, and Article 12, relating to recognition for legal purposes of data messages). For example, an exchange of emails upon which one party relies as varying the terms in a contract, cannot be denied effect by the other party simply because the communications did not take place in hard copy.
32. The Australian Act explicitly applies where a transaction results from one or more electronic communications. It also applies to transactions that have been conducted by the use of both electronic communications and other forms of communications (such as paper-based communications).
Questions
33. Do you agree that a provision based on s 8 of the Australian Act should be included in the Bill to clarify the validity of transactions involving electronic communications?
Writing and Service of Documents
The Issue
34. New Zealand legislation requires many documents and communications to be "in writing" (a word search reveals 4680 occurrences of the phrase in primary legislation alone). These requirements take two basic forms:
- some provisions require particular communications (including applications, requests, claims, notices etc) to be made in writing; and
- some provisions require certain types of document or record to be in writing, or attach consequences to the absence of writing. Thus a bill of exchange is an unconditional order to pay "in writing", and a document of title for the purposes of the Personal Property Securities Act 1999 must be "a writing" (but with an extended definition of writing in that Act).
35. The statutory requirement for certain documents or communications to be in "writing" may prevent the use of new technologies by limiting how information can be recorded, and how dealings can take place or be proved. Yet in many cases electronic records and communications are the functional equivalent of a paper-based record or communication, and may be able to be used more conveniently and at lower cost.
36. The new definition of "writing" in s 29 of the Interpretation Act 1999, to include some forms of electronic records, may not sufficiently address this problem, as it may not be broad enough to encompass all appropriate technologies which could be used in a particular transaction.
37. Moreover s 29:
- does not address obligations to communicate in writing (e.g. a provision requiring notice in writing), with the result that there is still uncertainty about whether requirements to "give notice" or "apply" in writing can be satisfied electronically; and
- does not provide safeguards in respect of communications in writing, such as requiring the consent of the recipient to receive electronic communications, or to receive them using a particular technology or format.
38. New Zealand legislation also contains many requirements to send, serve or deliver documents. There is increasing demand for the law to permit electronic delivery of such information. For example, there would be cost savings for many companies if they were able to deliver annual reports and other documentation to shareholders electronically.
The Proposed Solution
39. It is proposed to include in the Bill a provision relating to statutory requirements to provide information "in writing" similar to that contained in s 9 of the Australian Act, permitting these requirements to be satisfied by electronic communications where those communications are accessible so as to be usable for subsequent reference, subject to certain safeguards. ("Providing information", in this context, includes performing statutory requirements to send, serve or deliver information in writing - see the attached Glossary).
40. It is also proposed that the Bill will include an extended definition of writing, which will include electronic records which are accessible so as to be usable for subsequent reference, subject to some possible exceptions. It is suggested that the Interpretation Act 1999 would be consequentially amended, to make the definition of "writing" contained in that Act consistent with the Bill.
Rationale
The Scope of "Writing"
41. The Law Commission considered that the use of electronic technology to satisfy writing requirements was adequately addressed by s 29 of the Interpretation Act, but that s 29 should be restated in the proposed Electronic Transactions Bill for ease of reference.
42. Section 29 of the Interpretation Act 1999 currently defines writing as follows:
| "Writing" includes representing or reproducing words, figures, or symbols- |
| (a) | In a visible and tangible form by any means and in any medium: |
| (b) | In a visible form in any medium by electronic means that enables them to be stored in permanent form and be retrieved and read. |
43. Where any statute requires a document to be "in writing", s 29 now allows certain types of electronic technologies to be used. But as noted above:
- section 29 imposes limits on the types of electronic record that will be treated as writing; and
- section 29 does not address obligations to communicate in writing, giving rise to some uncertainty about how those obligations can be performed, and leaving any safeguards to be developed by the courts rather than clearly stated in the legislation.
44. Turning first to questions of scope, the Ministry considers that s 29 of the Interpretation Act may be too narrow to facilitate the use of all appropriate electronic technologies, and inconsistent with the functional equivalence principle. This concern arises because the section refers to representing or reproducing words, figures, or symbols "in a visible form". This limit is not included in the Model Law or the Australian, UK, Singaporean or Canadian legislation. The s 29 definition does not appear to permit methods of storing information which would be "accessible so as to be usable for subsequent reference"4 where that method of storage does not involve storing the information in a visible form, for example, certain types of data storage or audio recordings.
45. A restriction to "visible form", or even "perceivable form" was considered and rejected by the UNCITRAL working group which drafted the Model Law. The formulation "accessible so as to be usable for subsequent reference" was deliberately chosen to be wider than either of these formulations.5
46. Implementing legislation in several countries has however introduced some limits on the types of electronic record or communication which can be treated as equivalent to writing. The UK legislation defines communications to include communications "comprising sounds or images or both and a communication effecting a payment." Singapore requires the information to be retrievable "in perceivable form". Australia limits electronic communications to:
| "(a) | a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or |
| (b) | a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system." |
47. The Ministry's preliminary view is that it is undesirable to limit the functional equivalence principle in relation to "writing", and undesirable to take an approach which is narrower than the Australian approach, in particular. Thus it is proposed that the type of record which is accepted as an equivalent to writing be defined at least as broadly as the term "electronic communication" in the Australian Act. It is also suggested that the additional limit on information in the form of speech in para (b) of the Australian definition could be dispensed with. The broader UK approach may well be more appropriate, in the context of a general enabling Act which is intended to be technology neutral.
48. A question remains about the appropriateness of allowing some records which are accessible so as to be usable for subsequent reference to be treated as writing, where they cannot be rendered in visible form - in particular, audio recordings and audio files. (Another example of a record which would be accessible so as to be usable for subsequent reference, but without words rendered in visible form, would be an electronic record that could be used to generate a Braille version of a message.) Comment is sought on these issues.
49. It is suggested that if there is to be a broader definition of "writing" in the Bill, then s 29 of the Interpretation Act should be consequentially amended to be consistent. This avoids having two inconsistent generally applicable definitions of the same concept on the statute book.
Consent to Communication in Electronic Form as a Substitute for Writing
50. The second issue is that s 29 of the Interpretation Act does not address the question of provision/communication of information "in writing". Therefore:
- it is not clear whether, where a statute requires e.g. notice in writing, or requires that information be sent in writing, an obligation of this kind can be performed using the technologies to which s 29 applies; and
- if s 29 does allow such obligations to be performed electronically, there are no safeguards intended to ensure that the "recipient" of a "written" document in electronic form can in fact receive such documents and access them. The Law Commission considered the need for such safeguards in connection with statutory requirements to give notices, and considered that they were desirable. The Ministry considers that this is equally true in relation to all statutory obligations to provide information in writing.
51. A provision similar to s 9 of the Australian Act appears desirable to address this issue. Section 9 provides that information required to be provided in "writing" under a statute, for example, notices and applications, can be provided by means of an electronic communication if:
- the communication satisfies the functional equivalence test (i.e. is accessible so as to be usable for subsequent reference); and
- the recipient has agreed expressly or impliedly to the particular electronic method used and (in the case of persons other than Government entities) has consented to use of electronic communications for the relevant purpose.
52. Section 9 of the Australian Act applies to a wide range of statutory requirements to communicate in writing, including making applications, claims, requests etc, lodging objections, and "giving, sending or serving a notification" (see s 9(5)).
53. The permission conferred by s 9 to use electronic technology instead of paper-based "writing" does not however affect other laws which specify particular storage requirements for electronic communications, or which specify a particular kind of electronic communication: those have precedence over that section.
54. Section 9 does not expressly deal with statutory requirements to give a notice or serve a notice in a particular way, for example by ordinary post or registered post, or by personal service. It is unclear whether s 9 of itself enables such an obligation to be discharged electronically. It is suggested that to avoid any doubt on this issue in New Zealand, the Bill should make it clear that electronic technology can be used whatever means of giving or serving or sending the information is specified, provided that:
- this does not apply to an obligation to deliver or serve a document personally; and
- this does not apply to an obligation to send a document by registered post.
55. This approach would be consistent with the recommendations of the Law Commission to provide for electronic equivalents to giving notice by ordinary post, but not registered post, or personal service.
56. One proposed difference from the Australian Act is that the Bill will require the consent of any recipient of a "written" communication, including government entities, for that communication to be made electronically. The Commonwealth government has made a policy decision that from 1 July 2001, all Commonwealth entities will be required to accept electronic dealings, unless expressly exempted from the Act. This Bill is not intended to impose any such obligation.
57. It is proposed that the Bill will follow the Australian model in defining consent to include both express consent to use of electronic communications, and also consent that can be inferred from conduct. Often such consent will be implicit. An example of implicit consent is a government agency that provides an interactive website to enable members of the public apply for a licence - plainly it is consenting to the use of that facility for that purpose. Similarly, a person who sends an offer to another by email impliedly agrees to use of the same method for acceptance, unless there is any indication to the contrary in the message itself.
58. There may be some contexts, as noted above, where it would be desirable for the Bill to specify certain restrictions on the form of consent which is required - for example, requiring express consent, or other formalities which ensure that the issue is drawn to the consenting party's attention. Comments are sought on when additional safeguards of this kind may be required, and on the form they should take.
59. It is not intended that the Bill will contain any rules on who is authorised to consent to receipt of particular communications by electronic means. Such provisions would be difficult to apply in the context of inferred consent, and in relation to express consent normal agency principles will apply. Neither the Australian Act nor the Model Law contains such provisions.
Questions
60. Should the type of electronic record which is accepted as an alternative to writing be limited in any way, apart from requiring that it be accessible so as to be usable for subsequent reference? If so, what exceptions or limits are desirable, and how should they be expressed? (e.g. should audio records be excluded, or their use limited as under the Australian Act?)
61. If the definition of writing under the Bill is broader than section 29 of the Interpretation Act, should s 29 be amended to be consistent with the Bill?
62. If you consider that the Bill should not alter the definition of "writing" in section 29 of the Interpretation Act at all, should the definition that is contained in the Interpretation Act be restated within the Bill for ease of reference?
63. Do you agree that the Bill should permit statutory requirements to provide information in "writing" to be satisfied by an electronic communication of the information, provided it is accessible so as to be usable for subsequent reference?
64. Should the Bill require the express or implied consent of the recipient to receipt of electronic communications as a substitute for "writing", as under the Australian Act?
65. Are there some situations in which consent should be required to be express, rather than inferred, or where other special requirements should apply (e.g. to ensure that the consent is genuine and informed)?
66. Should some specific forms of communication required by statute, such as sending a notice by registered post, be excluded from the scope of the Bill, so that they cannot be performed using electronic technology even with the consent of the recipient? If so, which requirements should be excluded?
Incorporation by Reference
The Issue
67. Incorporating terms or conditions by reference only in electronic communications which form the basis of a transaction is more frequently done than in the situation of paper-based transactions. This is usually due to the fact that large numbers of electronic communications take place in a particular transaction, with each electronic communication containing brief information only, with more detailed information available elsewhere. It is uncertain whether the status of terms and conditions or other material information communicated by reference only in an electronic transaction will be legally enforceable. There is the potential that terms and conditions which are only incorporated by reference into a final transaction will not be enforceable. This creates unnecessary uncertainty and therefore costs in the use of electronic communications to conclude a transaction.
Proposed Solution
68. It is proposed that the Bill include rules dealing with situations where certain terms and conditions are not stated in full, but are merely referred to in the electronic communication.
Rationale
69. These rules will reduce uncertainty and facilitate the use of incorporation by reference in electronic communications. It is proposed to base these provisions on Article 5 bis of the Model Law.
70. The Model Law provides that in these instances, the terms and conditions will be recognised as having the same degree of legal effectiveness as if they had been fully stated in the text of that electronic communication.
Article 5 bis. Incorporation by reference
Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is not contained in the data message purporting to give rise to such legal effect, but is merely referred to in that data message.
71. Article 5 bis of the Model Law is intended to facilitate incorporation by reference in electronic communications by removing uncertainty as to whether the traditional rules dealing with incorporation by reference apply.
72. The Australian Act is silent on the issue of incorporation by reference. This is primarily due to the fact that the Australian Act deals with Commonwealth legislation only, and does not deal with matters governed by State law, such as the law of contract.
73. It is important to bear in mind that all Article 5 bis does is prevent information from being denied legal effect because it is not included in the "effective" data message. Questions of adequate notice of the terms and conditions on which a party seeks to rely, but which have been included by reference in a transaction, will continue to be governed by common law.
74. In New Zealand it seems likely, though not certain, that the effectiveness of incorporation of material by reference into electronic communications would be determined by the courts based on the existing common law rules dealing with incorporation by reference. However, the Law Commission recommended that this matter should be addressed in legislation, and the Ministry is of the opinion that for the avoidance of doubt, a provision which clarifies the status of incorporation by reference in electronic communications should be included in the Bill.
Questions
75. Do you agree that a general rule should be included in the Bill to clarify the validity of incorporation by reference in electronic communications?
Signatures
The Issue
76. Many New Zealand statutes require signatures, but there is no statutory definition of a "signature" in New Zealand. Some statutes give indications of what constitutes a "signature" for the purposes of that particular statute (e.g. s 92 Bills of Exchange Act 19086), but generally the question of what constitutes a "signature" is a matter of common law. The courts have permitted "signatures" by a variety of marks or symbols, whether written, printed or stamped on to paper documents. There appears, however, to be no specific judicial authority which countenances a "signature" by electronic means.
77. Given the absence of a definition of "sign" or "signature" which permits a "signature" by electronic means, there is uncertainty as to whether it is possible to meet a statutory requirement for a transaction to be "signed" or contain a "signature" without a physical document being created and a physical mark placed on that document. Therefore, it is unclear whether an electronic signature will have the same legal effect as a manual signature.
The Proposed Solution
78. It is proposed to provide in the Bill that where a signature is required under statute, an electronic signature will have the same legal effect as a manual signature. This provision would be based on s 10 of the Australian Act, and would provide that a statutory requirement for a signature will be satisfied by an electronic signature if:
- a method is used to identify the person and indicate their approval to the information being communicated;
- the method was as reliable as appropriate for the purpose. The Bill will include guidelines on reliability (see below); and
- the person receiving the signature consents to receiving that signature by electronic means, and in the relevant electronic format.
79. The provisions in the Bill relating to electronic signatures will only apply where there is a specific statutoryrequirement for a signature. Without a statutory requirement, the law does not require a signature for any purpose. Signatures may be relevant to questions such as attribution of a message to its sender, or proving that an agreement has been entered into. In this situation there is no legal barrier to use of electronic technology for such purposes: the Courts will apply the relevant general principles relating to attribution, contract formation etc.
Rationale
Scope of an Electronic Signature
80. It should also be noted that it is not intended to define what constitutes an electronic signature. This is consistent with the approach taken in the Australian Act.
81. The reason for not comprehensively defining a "signature" in the Bill is that to try and set out a comprehensive code encompassing all aspects of electronic signature infrastructure, use and technology could tie the law to a given state of technological development. This could impose increased compliance costs, as businesses may not then be able to utilise better technology or more cost-effective methods as these are developed. It also inhibits innovation, as even where there is the possibility to improve on existing technology, or create more cost-effective methods, these options will not be explored on the grounds they could not be used.
82. Instead the intention is to maintain technological neutrality between paper-based requirements and electronic equivalents, and additionally between different technological means of creating the electronic equivalents.
83. Adoption of this approach to electronic signatures means that the question of whether an electronic signature is reliable will be ultimately a question of fact and degree to be determined by the courts. In practice this means that there will be differing standards of authentication required for different types of transactions.
84. The benefit of this flexible approach is that it maintains the principle of technological neutrality, and allows the private sector to develop a detailed infrastructure for electronic or digital signatures, to the extent that one is required.
85. Additionally it will allow the marketplace to lead the way in determining which signing technologies are appropriate for particular transactions. It will also allow the courts to take account of new technologies without the need to continually update legislation. Lastly, potential costs through being tied to a particular form of technology will be avoided.
86. This approach may also mean that questions relating to the authentication of signatures and the degree of reliability required for different classes of transactions will remain unanswered until individual conflicts come before the courts. This process may be lengthy and expensive, with the result that definitive case law as to electronic signatures may take a number of years to form. This approach however accords with the purpose of the Bill which is to provide a piece of overarching legislation which facilitates the evolution of the law relating to electronic transactions. (To reduce this uncertainty so far as practicable at this time, it is proposed that the Bill will contain rebuttable presumptions on reliability (see below).)
The Need for Consent
87. Where a statute requires that a signature be provided to a person, it will be up to that person to decide whether or not to accept electronic signatures, and to specify any particular technology or other requirements in relation to the signature (e.g. use of a particular trusted third party to verify the signature). The Bill will differ from the Australian Act in requiring consent from Government entities as well as from others - the Bill will not impose an obligation on Government entities to accept electronic signatures, unless they consent.
Standards of Proof
88. It is also proposed to provide guidelines on reliability of electronic signatures which create a rebuttable presumption as to when an electronic signature will be "as reliable as was appropriate" for the purpose for which the message was generated or communicated, and thus valid.7
89. The guidelines for determining the reliability of an electronic signature will provide that an electronic signature will be presumed to be valid if the following four requirements are met:
- the means of creating the electronic signature is linked to the signatory and to no other person; and
- the means of creating the electronic signature was, at the time of signing, under the control of the signatory and of no other person; and
- any alteration to the electronic signature made after the time of signing is detectable; and
- where a purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.
90. To allow for this presumption to be challenged, it is also recommended to incorporate a provision similar to Article 6(4) of the UNCITRAL draft Uniform Rules on Electronic Signatures. This provision will confirm that nothing limits the ability of any person to establish in any other way the reliability of an electronic signature, or to adduce evidence of the non reliability of an electronic signature in any given circumstance.
Enhanced Signatures
91. In some cases the law requires an "enhanced" manual signature by, for example, the addition of the signature of a witness or the affixing of a seal. It is not intended to address the issue of the validity of enhanced electronic signatures in the Bill. The Ministry considers that the courts are better placed to determine whether, if at all, a requirement for an enhanced signature could be met electronically. The Law Commission's view was that the general provisions on signature would enable a document to be witnessed, for example, using appropriately reliable electronic means. Thus a deed could be in electronic form, without the need for any specific provisions relating to deeds, or to witnesses. In some circumstances, however, the Bill will provide specific exclusions in relation to some circumstances where "enhanced" signatures are required, for example, wills and affidavits. (See discussion on Scope of the Bill.) This will make it clear that electronic signatures are not acceptable in certain areas.
Questions
92. Do you agree with the recommendation that a provision similar to that contained in section 10 of the Australian Act be incorporated into the proposed Bill?
93. Do you agree that the Bill should not define what constitutes an electronic signature?
94. Do you agree that the Australian section 10 should be supplemented with guidelines which give rise to a rebuttable presumption that a signature is sufficiently reliable?
Future Developments
95. The UNCITRAL Working Group on Electronic Commerce is currently working on a range of other issues relating to electronic signatures. Once this work has been completed New Zealand could consider adopting more detailed electronic signature legislation.
Time and Place of Dispatch and Receipt
The Issue
96. A number of legal questions turn on the place where a message is sent or received, and the time at which it is sent or received. One example is that the High Court has jurisdiction in a contract dispute if the contract was entered into in New Zealand (High Court Rules, rule 219). This may turn on where an electronic acceptance was sent, or where it was received. It is not clear what approach a court would take to determining such questions, in the case of an electronic communication which may be received by the addressee's Internet Service Provider or corporate server at one time and place, and by the addressee's computer at another, and by the addressee in person at another time still. The absence of a clear default rule may cause unnecessary uncertainty, and some unnecessary costs.
The Proposed Solution
97. It is proposed to include default rules in the Bill, which may be altered by agreement between the parties to a particular transaction, as to the time and place of dispatch and receipt of electronic communications in order to eliminate this confusion. These default rules would be based on s 14 of the Australian Act. (Enabling the parties to a particular transaction to contract out of these intended provisions will maintain the freedom of the parties to determine different rules to govern their dealings).
Rationale
98. Under s 14 of the Australian Act, the time of dispatch of an electronic communication is deemed to be when the electronic communication enters an information system that is outside the control of the person generating the electronic communication.
99. The time of receipt of an electronic communication is deemed to be either:
- when the communication first reaches the information system of the person to whom the electronic communication is addressed (if that person has designated an information system for this purpose); or
- when the electronic communication comes to the attention of the addressee (if they do not designate an information system for the receipt of electronic communications).
100. The place of dispatch and receipt of electronic communications is deemed to be the place of business of the person generating the electronic communication and the place of business of the addressee respectively. Where the originator or addressee has more than one place of business, the place with the closer relationship to the underlying transaction is treated as the relevant place of business at which the message is sent or received. "Place of business" is given an extended definition in the Australian Act to include the place where operations or activities are carried on by a government entity or a non-profit body. If this phrase is used in the Bill, it will need to be further extended to include the habitual residence of a natural person who does not carry on business activities.
101. This provision is intended to ensure that there is some reasonable and meaningful connection between, for example, the addressee, and what is deemed to be the place of receipt, that can be readily ascertained by the person generating the electronic communication. In particular, the provision is intended to ensure that it is not the location of a server or other computer which determines the place of receipt or dispatch, since this is often quite arbitrary, and is not apparent to the other party (consider a person in New Zealand using a hotmail account, where the emails are received and stored on a computer in the United States - it should be the location of the person's business or residence which is relevant, not the location of the hotmail server). The provision provides users of electronic technology with a reasonably clear and objective default rule, which in most cases will be simple to apply.
102. It is envisaged that this provision will be of most application in the "low value, high volume" transactions which comprise the majority of existing Internet trade. By clarifying where a message is sent or received, the provision will assist in determining a range of issues, including, which jurisdiction a particular dispute should be heard in. As this provision is similar to that contained in the legislation of our main trading partner, it will provide for consistency of approach on an international level.
103. It is possible that over time a similar degree of certainty would evolve under contract and common law, without the need for government intervention. Also there is a risk that providing rules for the time and place of dispatch and receipt of electronic communications does not actually provide technological neutrality, and may not accord with current industry practice.
104. However, the Ministry considers that the increased certainty that will be provided by this provision outweighs the risk of government determining a set of rules that may or may not accord with current industry practice. It should also be noted that allowing the parties to an electronic transaction to contract out of these provisions mitigates this risk.
Questions
105. Do you agree with the introduction of default rules in relation to time and place of dispatch and receipt of electronic communications?
106. Are the suggested default rules, based on s 14 of the Australian Act, appropriate?
Production of Documents and "Originals"
The Issue
107. Many provisions in New Zealand legislation require a person to produce, deliver or otherwise provide a particular document - e.g. a birth certificate or licence of some kind. Some of these require that an original be provided, and some also allow certified copies. This creates a barrier to carrying out the relevant transaction by electronic communication.
108. A number of New Zealand statutes also require original documents to be used for certain purposes, for example as the basis for comparison before certifying that a copy of a document is an accurate copy. Such requirements appear to prevent the use of an electronic form of a paper document, and raise some uncertainty in their application to records which were never in paper form - the concept of an "original" is not easy to apply to an email, for example.
The Proposed Solution
109. It is proposed that the Bill include a provision similar to s 11 of the Australian Act. This section enables electronic technology to be used to meet an obligation to produce a document. The consent of the recipient will be required for electronic means to be used to produce a document.
Rationale
110. The Law Commission recommended including in the Bill a provision modelled on the Australian s 11. Section 11 provides that a document may be produced electronically where:
- the integrity of the information in the document is maintained;
- the information is readily accessible so as to be used for subsequent reference; and
- non-Government recipients consent to that document being produced in an electronic form. Government recipients must accept electronic production of documents, but can impose technology and format requirements. (In this respect, it is proposed the Bill will differ from the Australian Act, as it is not intended that New Zealand Government departments will be required to accept electronic production of documents. Thus consent will also be required from Government entities.)
111. The provision applies both where the initial transaction took place electronically and the record of the transaction has always been in electronic form, and where the record was originally in paper form, but an electronic form (i.e. copy) of the document is being produced electronically for the relevant statutory purpose.
112. Section 11 also provides that copyright in any document is not infringed by its generation or production in an electronic format for the purposes of this section i.e. to meet a statutory requirement to produce the document.
113. Section 11 of the Australian Act is once again based on the concept of functional equivalence. Obligations to produce documents, in particular original documents, are directed to ensuring the integrity of the information contained in the document, and to reduce the risk of alteration or fabrication. The safeguards in s 11 are directed to precisely these concerns.
114. Article 8 of the UNCITRAL Model Law, which Australian s 11 is based on, addresses statutory obligations to provide an original document. Section 11 focuses on the "production of documents", rather than on requirements in respect of "original" documents, departing from the language of Article 8. This is because there are no requirements under Commonwealth law specifying that documents must be in an original form. The intention is that any requirements in respect of originals in State and Territory laws will be dealt with by the corresponding State and Territory legislation. (The question of retention of original documents is addressed separately in s 12 of the Australian Act, discussed below.)
115. New Zealand legislation does include requirements that "original" documents be provided, and other provisions in relation to originals. It is suggested that section 11 needs to be modified in the New Zealand context to ensure that it expressly includes statutory requirements to produce an original form of a document.
116. The remaining question is whether other requirements in relation to originals should be capable of being satisfied by use of electronic forms of a document. This was not separately addressed by the Law Commission. The Ministry considers that it may be necessary to permit certified copies to be given following comparison with an electronic version of the document, for example, and that this requires additional provisions in the Bill. Comment is sought on this issue.
117. The Australian Act excludes from section 11 statutory obligations to produce documents in connection with immigration and citizenship maters. As noted in the section relating to the scope of the Bill, comments are sought on whether a similar exclusion is required in New Zealand. Because the proposed New Zealand provision would not allow documents to be produced to a Government entity without the consent of that entity, and then only in accordance with that entity's technology and format requirements, it is suggested that an exclusion of this kind probably is not needed.
Questions
118. Do you agree that a provision similar to section 11 should be contained in the proposed Bill, enabling documents to be produced in electronic form with the consent of the recipient?
119. Should the legislation expressly provide for use of electronic technology to satisfy requirements to produce an original document?
120. Should the provision extend to other requirements relating to original documents, and provide that electronic equivalents can be used to satisfy such requirements (e.g. a requirement to compare a copy with the original)?
121. Bearing in mind the requirement that the recipient of a document must consent to it being produced in electronic form, is there any need to exclude from the scope of the proposed provision requirements to produce documents under laws relating to immigration or citizenship? Are any other exclusions necessary?
Retention of Documents
The Issue
122. New Zealand law contains numerous statutory requirements for record keeping and retention of various kinds of documents. Company and tax legislation require records to be retained for at least seven years, and there are penalties for non-compliance. Both company and tax law already make specific provision for some records to be kept electronically. These provisions are limited, however, and most statutes do not even address this issue. This raises two difficulties:
- there is unnecessary uncertainty in relation to retention of records of transactions which took place electronically. How does one "retain" an electronic communication?
- it is not possible to take full advantage of the convenience and cost savings that can be achieved by retaining an electronic form of paper documents, and destroying the paper versions.
The Proposed Solution
123. It is proposed to introduce a provision similar to s 12 of the Australian Act to allow information to be recorded and retained in electronic form, if a person or business chooses to do so. This would apply both to information relating to electronic transactions, and also to electronic versions (i.e. electronic copies) of records which were originally paper documents. Where an adequate electronic version of a paper document is retained, the original paper version can be destroyed.
Rationale
124. The Law Commission recommended inclusion of a provision based on the Australian s 12, which in turn is based on Article 10 of the UNCITRAL Model Law. In summary, s 12 allows the use of electronic technology to meet statutory requirements that information be recorded and/or retained, provided that:
- the information is readily accessible so as to be useable for subsequent reference;
- the information is generated and retained in a manner which provides a reliable means of assuring the integrity of the information. Where the information to be retained was in the form of an electronic communication (and was never in paper form), additional information about the origin, destination, date and time of the electronic communication must also be retained; and
- any requirements as to the manner of recording or retaining such information in regulations made under the Act are complied with.
125. Section 12 also provides that generating an electronic version of a document for the purposes of that provision (i.e. in order to perform a statutory obligation to retain the document) does not infringe any copyright in the document.
126. The purpose of retaining records is generally to allow them to be produced upon demand to be used as evidence of the information contained in the record, whether to demonstrate compliance with statutory requirements or to justify claims for certain entitlements. The integrity of the information contained in the record and the ability to inspect it at a later date is therefore the central issue, and is the key to identifying a functional equivalent to retaining a paper document. As the Australian Act recognises, in the case of electronic communications the retention of an adequate record of the electronic communication will also often require additional information to be retained in relation to its origin, destination, time of sending and time of receipt: see s12 (4) (c) and (d).
127. It should be noted that this provision does not affect statutory responsibilities (e.g. Official Information Act) to retain accurate records including annotations and margin notes etc. If a statute requires that a document be retained complete with annotations, marginal notes etc then the obligation to retain it cannot be satisfied simply by retaining an electronic version of the original word-processing document before it was printed off and annotated: the obligation to preserve the annotated version will be satisfied by use of electronic technology only if the electronic method used accurately records all the annotations as well as the main text, for example by storing an image of the marked-up document on microfilm or as an image file.
Example
128. Section 29(3) of the Financial Reporting Act 1993 requires financial institutions to retain the records kept by that financial institution in relation to a transaction for a period of not less than 5 years after the completion of that transaction. Under this provision, an electronic document would meet this requirement (provided the integrity of the document was assured).
Questions
129. Do you agree that the Bill should include a provision based on the Australian s 12?
130. Are there any special requirements as to recording or retention of certain types of information or documents which should be dealt with in the Bill, or in regulations made under it?
131. Are there any statutory requirements to record or retain information in paper form which should not be capable of being performed using electronic technology, and should therefore be excluded from the Bill?
Freedom of Contract
The Issue
132. It is important that the Bill avoids giving rise to any uncertainty in relation to the ability of parties to a contract to determine the extent to which electronic technology will be used for the purposes of the contract (for e.g. communications, record-keeping, contractual variations etc). In particular, it should be clear that parties are free to contract:
- to exclude the use of electronic technology in their dealings; or
- to require the use of electronic technology for the purposes of the contract; or
- to allow electronic technology subject to additional requirements over and above those specified in the Bill.
133. Parties to a contract cannot in general contract out of statutory obligations to keep particular records in relation to a transaction. Some statutes also impose obligations to provide information (e.g. repossession notices) which parties to a contract cannot contract out of. The Bill does not affect the ability of contracting parties to contract out of provisions where this is permitted by the relevant statute. Where a statute cannot be contracted out of:
- the parties can agree between themselves whatever they wish (e.g. to keep records in some informal way); and
- this will not however affect their statutory obligations, which they will still have to perform, either by using paper-based methods or by complying with the minimum standards set by the Bill for compliance using electronic technology.
The Proposed Solution
134. It is proposed to introduce a provision similar in effect to Article 4 of the UNCITRAL Model Law, that confirms that the principle of freedom of contract applies in relation to the use of electronic technology, but that contracts cannot excuse compliance with statutory obligations unless the relevant statute allows contracting out.
Rationale
135. Article 4 of the Model Law provides:
| Article 4. Variation by agreement |
| (1) | As between parties involved in generating, sending, receiving, storing or otherwise processing data messages, and except as otherwise provided, the provisions of chapter III may be varied by agreement. |
| (2) | Paragraph (1) does not affect any right that may exist to modify by agreement any rule of law referred to in chapter II. |
136. Article 4(1) only applies to Chapter III of the Model Law, which contains Articles 11-15. Article 11 (concerning formation of contracts by electronic means) and Article 12 (concerning recognition of data messages by contracting parties) are effectively incorporated into the proposed provision on validity of transactions based on the Australian section 8. The only other one of those Articles which has been recommended for adoption in the New Zealand legislation is Article 15, which relates to the time and place of dispatch and receipt of communications. The proposal is that this will be done by following the Australian version of Article 15 (s 14 of the Australian Act), and the Australian provision already expressly provides for variation by agreement. So one approach would be to simply make it clear that the "validity" provision is also subject to agreement between parties to a contract.
137. Article 4(2) relates to the Articles in Chapter II of the Model Law, which set functional equivalence standards for complying with statutory obligations to use writing, signatures, keep records etc. What Article 4(2) says is, in effect, that you can contract out of those standards if and only if the relevant statute allows contracting out generally.
138. The Law Commission recommended including a provision based on Article 4 of the Model Law, but did not specify in its report which other provisions should be subject to that provision. In the light of that recommendation, and in order to ensure that there is no doubt about the freedom to contract in the manner described above, the Ministry's preliminary view is that a general provision should be included in the Bill which confirms that nothing in the Bill prevents parties agreeing issues as between themselves, but that this does not affect the question of compliance with statutory requirements except where those requirements are capable of being varied by agreement.
Questions
139. Do you agree that the Bill should include a provision confirming that the parties to a contract can deal with questions relating to the use of electronic technology as between themselves, but that this will not affect the question of compliance with statutory requirements except where those requirements are capable of being varied by agreement?
140. If not, what other modifications (if any) are required to specific provisions of the Bill to ensure that freedom of contract is not compromised?
Liability of Internet Service Providers
The Issue
141. An Internet Service Provider ("ISP") is an entity that provides access to the Internet and related services, such as Web site building and hosting. An ISP may perform a number of roles and functions, such as a carrier, broadcaster, uploader and/or downloader of electronic information or communications on the Internet on behalf of its subscribers, or provide mechanisms for its subscribers to perform those functions directly on the Internet.
142. As a result of the breadth of role of an ISP, and due to the lack of judicial decisions in this area, it is uncertain what liability ISPs will have for the acts or omissions of their subscribers, for example, in the area of defamation or breach of intellectual property rights. This is particularly so because an ISP will not normally have direct control over the information being hosted, or delivered, to or on behalf of, a subscriber.
143. This lack of certainty may pose a barrier to the development of electronic commerce in New Zealand, as the uncertain legal position increases the risks and costs of business to ISPs.
144. A further problem arises in relation to the scope of liability of ISPs for defamation, and whether they are protected by the defence of "innocent dissemination" in the Defamation Act 1992.
Proposed Solution
General Rule as to Liability of an ISP
145. It is proposed to include a provision in the Bill which will limit the circumstances in which an ISP will be liable for the acts or omissions of its subscribers. It is also proposed to amend the Defamation Act 1992 to make it clear that an ISP is a "distributor" and can invoke the defence of "innocent dissemination", if the requirements for that defence are satisfied.
Rationale
146. It is not feasible to require ISPs to actively monitor content and remove information that would give rise to a legal claim, in particular due to the sheer volume of information posted on the Internet, and the speed in which that can be accomplished. However, where an ISP has actual knowledge of information that would give rise to a legal claim, and does not act to remove that information from any Web site under its control, then the ISP should be liable.
147. It is proposed to include a provision in the Bill that an ISP will not be liable for any act or omission of its subscriber unless:
- it has actual knowledge of the existence of electronic information on a Web site which would be actionable at civil law or constitute a criminal offence; and
- the ISP fails to remove promptly any offending information of which it has knowledge.
148. It is also proposed to provide that ISPs will not be liable for the reposting by a third party of information that had previously been removed, unless it obtains actual knowledge of such a reposting, and fails to remove the information promptly.
149. This again reflects the difficulties ISPs face in dealing with the speed in which information can be posted to the Internet, and the lack of direct and effective control over subscribers in this environment.
The Defamation Act 1992
150. The potential for defamation of third parties through the publication or dissemination of electronic information or communications on the Internet is high. However, the liability of ISPs in relation to the posting of defamatory information by its subscribers is uncertain.
151. The Defamation Act 1992 provides a number of defences against an action for defamation, including the defence in s 21 of the Defamation Act of innocent dissemination. Section 21 provides:
| "In any proceedings for defamation against any person who has published the matter that is the subject of the proceedings solely in the capacity of, or as the employee or agent of, a processor or a distributor, it is a defence if that person alleges and proves- |
| (a) | That that person did not know that the matter contained the material that is alleged to be defamatory; and |
| (b) | That that person did not know that the matter was of a character likely to contain material of a defamatory nature; and |
| (c) | That that person's lack of knowledge was not due to any negligence on that person's part." |
152. It is unclear whether an ISP will be able to invoke the defence provided in section 21 in relation to defamatory information that is posted by its subscriber, because the defence is only available to distributors and processors as defined in the Act, and it is not clear whether an ISP falls within these definitions.
153. The Law Commission recommended that ISPs be specifically included within the definition of a "distributor", to enable ISPs to rely on s 21 where its other requirements are met, and to ensure that the provisions of the Defamation Act were consistent with the Bill. (Note that the s 21 defence does not apply if a distributor knows of the defamatory material, or was negligent in failing to be aware of this - it is by no means an unqualified defence.) The Ministry, therefore, proposes to consequentially amend the Defamation Act to provide that ISPs are included within the definition of a "distributor".
Questions
154. Should the Bill provide rules as to when an ISP will be liable for the acts or omissions of its subscribers?
155. Is it more appropriate to leave the determination of ISP liability to the courts to determine?
156. Should the Defamation Act be consequentially amended to provide that ISPs are "distributors"?
Glossary of Terms Used
"consent", in the context of consent required to receive electronic communications and to their format etc, is used very broadly to include both express consent and implied consent. In particular, it includes consent that can be inferred from another person's conduct: for example, a government department that provides an interactive web page for applying for a permit of some kind is impliedly consenting to use of that form of communication for applications; a company that sends an offer by email is impliedly consenting to use of the same form of email for communicating an acceptance of that offer, absent any indication to the contrary in the message itself.
"e-commerce" is used as a generic term for any commercial activity carried out wholly or in part by electronic means, including by means of closed systems (such as private networks or Electronic Data Interchange ("EDI") systems) or open systems such as the Internet. In particular, it includes use of electronic technology:
- to locate another contracting party; or
- to enter into a contract with another party; or
- to perform a contract (e.g. by delivering services electronically, transmitting content electronically etc).
"e-government" is used as a generic term for any government activity carried out wholly or partly by electronic means, whether using special purpose facilities or open systems such as the Internet. In particular, the term refers to the use of information technology to facilitate interaction between government agencies and citizens and businesses.
"electronic communication" is used in this paper to refer to any type of transmission of information from one person (or computer system) to another. Note that:
- the information may be in the form of text, images, sound, or any other form of data (e.g. an electronic instruction to a computer to effect a payment)8
- the electronic means used may be any form of electronic transmission of data, including a range of more or less familiar technologies like the telephone or facsimile machines, email (on a closed system or on the Internet), video conferencing, radio and television broadcasts etc. It also includes communications which are partly electronic and partly "real world", as with facsimiles or (to take another example) sending an audio recording by ordinary post.
"electronic transaction" is used very broadly, to refer to any dealings between a person (or computer system) and another person (or another computer system). It includes both single communications and the overall "result" or outcome of inter-related communications e.g. a contract formed by an offer and an acceptance in electronic form. Note also that:
- the term is not used in a narrow commercial or contractual sense. For example, applying to a local authority for a resource consent is included as a "transaction", as is the grant of that consent;
- the term is used to include transactions which are partly electronic and partly paper-based e.g. a contract formed as the result of an offer sent by email, and a response hand-delivered or sent by mail.
"information" is used to refer to any data which might be recorded or communicated, whether or not directly intelligible to human beings or perceivable by human beings. It could be in the form of text, images, sound, or any other form of data (e.g. an electronic instruction to a computer to effect a payment).
"ISP" is an abbreviation for "Internet Service Provider", which is an entity that provides access to the Internet and related services, such as Web site building and hosting. An ISP may perform number of roles and functions, such as a carrier, broadcaster, uploader and/or downloader of electronic information or communications on the Internet on behalf of its subscribers, or provide mechanisms for its subscribers to perform those functions directly on the Internet.
"produce" a document, in the context of a statutory requirement, refers to any obligation to provide a document to a government entity or to some other person, whether in original form or otherwise. Thus if a statute requires an application for a permit to be accompanied by a birth certificate, that is a requirement to produce a birth certificate, and will be able to be performed by sending a reliable electronic version of that certificate (e.g. an appropriately verified image file).
"provide information" is used in the broadest possible sense to include performing any statutory obligation to give, send or serve a document containing that information, and extends to acting in accordance with statutory provisions in relation to e.g.:
- making an application;
- making or lodging a claim;
- giving, sending or serving a notification;
- lodging a return;
- making a request;
- making a declaration;
- lodging or issuing a certificate;
- making, varying or cancelling an election;
- lodging an objection;
- giving a statement of reasons.
"record" is used to refer to any stored information, and "electronic record" to refer to any information stored by electronic means.
"UNCITRAL" is the United Nations Commission on International Trade Law, a UN agency which has prepared a number of important international legal texts. UNCITRAL texts implemented in New Zealand include the Model Law on Arbitration and the Vienna Sales Convention.
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