Electronic Transactions Act 2002 - Part 1: Preliminary
Part 1 (Sections 3 to 7) contains a number of general provisions.
Section 3 - Purpose
Section 3 provides a brief statement of the purpose of the ETA. The goal is to facilitate the use of electronic technology, by reducing uncertainty in relation to use of electronic technology (Part 2) and permitting certain paper-based legal requirements to be met using functionally equivalent electronic technology (Part 3).
Section 4 - Overview
Section 4 provides an overview of the structure and content of the ETA, to assist users of the legislation to identify and locate relevant provisions.
Section 5 - Interpretation
Section 5 sets out definitions of a number of terms used in the ETA. The terms defined are "data storage device", "electronic", "electronic communication", "electronic signature", "information", "information system", "legal requirement", "Minister" and "transaction".
The definition of "electronic" is deliberately broad, and extends to a number of technologies that might not otherwise be considered electronic, such as optical, biometric and photonic technologies. The goal is to avoid limiting the application of the ETA inappropriately.
The term "electronic signature" is given a wide meaning and the definition makes clear that it is the "method" and not the electronic signature itself that is used to signify the signatory, in line with the Australian Electronic Transactions Act 1999. The definition uses language from article 7 of the Model Law on Electronic Commerce that was subsequently used in the definition of "electronic signature" in the Model Law on Electronic Signatures.
As a matter of ordinary English, one method of signing is to use a mark-based signature. This is encompassed in the reference to "method" (and this is explained in the guide to enactment for the Model Law on Electronic Commerce).
Under the definition of "electronic signature" in the ETA, methods of recording oral assent or printing a name on the bottom of an email may in some cases be treated as a signature, if they are as reliable as is appropriate in the relevant context.
It is important to understand that there is a great deal of difference between the concepts of consent and signature. A click on a web page can be consent, but a click is unlikely ever to amount to a signature.
The term "information" is also broadly defined, and includes signatures and seals as well as the content of a document. Information in the form of images, sound or speech is also included. The definition extends to original versions of information, to ensure that a reference to an original in legislation falls within the scope of "information".
The term "transaction" is also given a very broad and inclusive definition. It extends to transactions of a non-commercial nature, and to single communications, as well as to the outcome of multiple related communications (e.g. a contract).
Section 6 - Further Provision Relating to Interpretation
Section 6 ensures that Courts are permitted (and encouraged) to refer to the UNCITRAL Model Law on Electronic Commerce (on which the ETA is based), and relevant UNCITRAL documents such as the Guide to Enactment, which contains a detailed commentary on the Model Law on Electronic Commerce. Section 6 is intended to assist New Zealand Courts to interpret the legislation, and also to promote international harmony in the interpretation and application of legislation based on the Model Law on Electronic Commerce.
Section 7 - Act Binds the Crown
Section 7 provides that the legislation will bind the Crown.
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