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Bahamas Numbered Acts |
No. 4 of 2003 |
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AN ACT TO PROVIDE FOR THE LEGAL |
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RECOGNITION OF ELECTRONIC WRITING, |
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ELECTRONIC CONTRACTS, ELECTRONIC |
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SIGNATURES AND ORIGINAL |
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INFORMATION IN ELECTRONIC FORM IN |
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RELATION TO COMMERCIAL AND OTHER |
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TRANSACTIONS AND TO PROVIDE FOR THE |
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FACILITATION OF ELECTRONIC |
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TRANSACTIONS AND RELATED MATTERS. |
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[Date of Assent : - 11th April, 2003] |
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Enacted by the Parliament of The Bahamas. |
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PART I |
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PRELIMINARY |
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1.(1)
This Act may be cited as the
Electronic Communications and Transactions Act, 2003.
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Short title and commencement. |
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(2)
This Act shall come into
operation on such day as the Minister may, by notice published in
the Gazette, appoint.
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2.
In this Act -
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Interpretation. |
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"addressee" in relation to an electronic communication, means a person who is intended by the originator to receive the electronic communication, but does not include a person acting as an intermediary with respect to that electronic communication; |
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"consumer" means an individual who obtains, through a transaction, products or services which are used primarily for personal, family, or household purposes; |
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"e-commerce service provider" means a person who uses electronic means in providing goods and services; |
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"electronic" means relating to technology and having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities; |
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"electronic authentication" means any procedure employed for the purpose of verifying that an electronic communication is that of the originator and that it has not been altered during transmission; |
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"electronic agent" means a program, or other electronic or automated means that is used independently to initiate or respond to electronic communications or performances in whole or in part without review by an individual; |
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"electronic communication" means information which is communicated, processed, recorded, displayed, created, stored, generated, received or transmitted by electronic means; |
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"electronic signature" means any letters, characters, numbers, sound, process or symbols in electronic form attached to, or logically associated with information that is used by a signatory to indicate his intention to be bound by the content of that information; |
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"host" means a person who provides a service that consists of the storage in electronic form of information provided by another person; |
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"information" includes data, text, documents, images, sounds, codes, computer programs, software and databases; |
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"information processing system" means an electronic system for creating, generating, sending, receiving, recording, storing, displaying, or otherwise processing information; |
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"intermediary" with respect to an electronic communication, means a person including a host who on behalf of another person, sends, receives or stores either temporary or permanently that electronic communication or provides related services with respect to that electronic communication; |
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"Minister" means the Minister with responsibility for Electronic Commerce; |
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"originator" in relation to an electronic communication, means a person by whom, or on whose behalf, the electronic communication purports to have been sent or generated prior to storage, if any, but does not include a person acting as an intermediary with respect to that electronic communication; |
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"prescribed" means prescribed by regulations under section 24; |
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"public body" means any Ministry, agency, board, commission or other body of the Government and includes an entity or body established by law, or by arrangement of the Government or a Minister of the Government for a non-commercial public service purpose; |
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"record" means information that is inscribed, stored or otherwise fixed on a tangible medium or that is stored in an electronic, paper-based or other medium and is retrievable in visible form; |
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"security procedure" means a procedure, established by law or agreement or knowingly adopted by each party, that is employed for the purpose of verifying that an electronic signature, communication or performance is that of a particular person or for detecting changes or errors in content of an electronic communication; |
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"signed" or "signature" includes any symbol executed or adopted, or any methodology or procedure employed or adopted, by a person with the intention of authenticating a record, including electronic methods; |
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"transaction" means an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons, including the sale, lease, exchange, licensing, or other disposition of personal property, including goods and Intangibles, interest in real property, services, or any combination of the foregoing. |
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3.(1)
This Act binds the
Crown.
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Crown to be bound. |
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(2)
Notwithstanding subsection
(1), nothing in this Act obliges any public body to generate, send,
receive, store or otherwise process
any record by electronic means,
but the Minister may, by notice published in the Gazette, indicate
that a public body may receive
and process electronic
communications relating to such matters as may be specified in the
notice.
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4.
Part II shall not apply to any
rule of law requiring writing or signatures for the following
-
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Exclusions. |
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(a)
the creation, execution,
amendment, variation or revocation of -
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(i)
a will or testamentary
instrument; or
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(ii)
a trust;
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(b)
the conveyance of real property
or the transfer of any interest in real property;
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(c)
court orders or notices, or
official court documents required to be executed in connection with
court proceedings;
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(d)
enduring powers of attorney to
the extent that they concern the financial affairs or personal care
of an individual;
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(e)
all other deeds and documents
described in section 3 of the Registration of Records Act, not
otherwise expressly provided for under
this subsection.
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5.(1)
Nothing in this Act shall
-
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Autonomy of parties. |
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(a)
require any person to use or
accept electronic communications, electronic signatures, or
electronic contracts; or
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(b)
prohibit any person engaging in a
transaction through the use of electronic means from -
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(i)
varying by agreement any
provision relating to legal recognition and functional equivalency
of electronic communications, signatures,
and contracts specified
in Part II; or.
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(ii)
establishing reasonable
requirements about the manner in which electronic communications,
electronic signatures or electronic forms
of documents may be
accepted.
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(2)
A transaction which has been
conducted using electronic means shall not be denied legal effect,
validity, or enforceability because
of the type or method of
electronic communication, electronic signature or electronic
authentication selected by the parties.
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6.
Notwithstanding section 7, if
a statutory or legal requirement exists for a record to be provided
in writing to a consumer, such requirement
for writing shall be
satisfied by an electronic communication only if -
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Consumer consent to electronic communications. |
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(a)
the consumer has expressly
consented to such use and has not withdrawn his consent; and
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(b)
prior to consenting, the consumer
is provided with a clear and conspicuous statement informing the
consumer -
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(i)
about the right to have the
record provided in non-electric form;
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(ii)
about the right to withdraw
consent to have the record provided in electronic form and of any
conditions, consequences or fees in
the event of such
withdrawal;
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(iii)
whether the consent applies only
to the particular transaction which gave rise to the obligation to
provide the record, or to identified
categories of records that may
be provided during the course of the parties' relationship;
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(iv)
of the hardware and software
requirements for access to, and retention of, the relevant
electronic record;
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(v)
of the procedures for withdrawal
of consent and to update information needed to contact the consumer
electronically; and
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(vi)
of the procedures, after consent
has been given, for obtaining a paper copy of the electronic record
and any fee to be charged in
connection therewith.
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PART II |
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LEGAL RECOGNITION AND FUNCTIONAL |
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EQUIVALENCY OF ELECTRONIC COMMUNICATIONS, |
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SIGNATURES, CONTRACTS AND RELATED MATTERS |
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7.
An electronic communication
shall not be denied legal effect, validity, admissibility or
enforceability solely on the ground that
it is -
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Legal recognition of electronic communications. |
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(a)
in electronic form; or
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(b)
not contained in the electronic
communication purporting to give rise to such legal effect, but is
referred to in that electronic
communication.
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8.(1)
Where information is required
bylaw either to be in writing or is described as being written,
such requirement or description is met
by an electronic
communication if the information contained in the electronic
communication is accessible to, and is capable of retention
by, the
intended recipient.
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Writing. |
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(2)
Subsection (1) shall apply
whether the requirement for the information to be in writing is in
the form of an obligation or the law
provides consequences if it is
not in writing.
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9.(1)
Where the law requires the
signature of a person, that requirement is met in relation to an
electronic communication if a method is
used to identify that
person and to indicate that the person intended to sign or
otherwise adopt the information in the electronic
communication.
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Signature. |
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(2)
Subsection (1) shall apply
whether the requirement for a signature is in the form of an
obligation or the law provides consequences
for the absence of a
signature.
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(3)
An electronic signature may be
proved in any manner, including by showing that a procedure existed
by which it is necessary for a
party, in order to proceed further
with a transaction, to have executed a symbol or security procedure
for the purpose of verifying
that an electronic communication is
that of such party.
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10.(1)
Where information is required
by law to be presented or retained in its original form, that
requirement is met by an electronic communication
if -
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Original form. |
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(a)
there exists a reliable assurance
as to the integrity of the information from the time it was first
generated in its / final form
as an electronic communication or
otherwise; and
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(b)
where it is required that
information be presented, that information is capable of being
accurately represented to the person to whom
it is to be
presented.
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(2)
Subsection (1) shall apply
whether the requirement for the information to be presented or
retained in its original form is in the
form of an obligation or
the law provides consequences if it is not presented or retained in
its original form.
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(3)
For the purposes of subsection
(1)(a) -
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(a)
the criterion for assessing
integrity is whether the information has remained complete and
unaltered, apart from the addition of any
endorsement and any
change which arises in the normal course of communication, storage
and display; and
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(b)
the standard of reliability
required is to be assessed in the light of the purpose for which
the information was generated and all
the relevant
circumstances.
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11.(1)
Where certain documents,
records or information are required by law to be retained, that
requirement is met by retaining electronic
communications if the
following conditions are satisfied -
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Retention of electronic communications. |
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(a)
the information contained in the
electronic communication is accessible so as to be usable for
subsequent reference;
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(b)
the electronic communication is
retained in the format in which it was generated, sent or received,
or in a format which can be demonstrated
to represent accurately
the information generated, sent or received; and
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(c)
any information that enables the
identification of the origin and destination of an electronic
communication and the date and time
when it was sent or received is
retained.
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(2)
An obligation to retain
documents, records or information in accordance with subsection (1)
shall not extend to any information the
sole purpose of which is to
enable the message to be sent or received.
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(3)
A person may satisfy the
requirement referred to in subsection (1) by using the services of
any other person, if the conditions set
out in subsection (1)(a),
(b) and (c) are met.
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(4)
Nothing in this section shall
preclude any public body from specifying additional requirements
for the retention of electronic communications
that are subject to
the jurisdiction of such public body.
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12.(1)
In any legal proceedings,
nothing in the' rules of evidence shall apply so as to deny the
admissibility of an electronic communication
in evidence solely on
the ground that it is in electronic form.
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Admissibility and evidential weight of electronic communications. |
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(2)
Information in the form of an
electronic communication will be given due evidential weight and in
assessing the evidential weight
of an electronic communication,
regard shall be had to -
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(a)
the reliability of the manner in
which the electronic communication was generated, stored or
transmitted;
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(b)
the reliability of the manner in
which the integrity of the information was maintained;
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(c)
the manner in which the
originator was identified; and
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(d)
any other relevant factor.
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(3)
This section shall not affect
the application of sections 61 and 67 of the Evidence Act (which
relates to the admissibility of documents produced by
computers).
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No. 15 1996. |
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13.
In the context of formation of
contracts, unless otherwise agreed by the parties, an offer and the
acceptance of an offer may be expressed
by means of electronic
communications.
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Formation and validity of contracts. |
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14.(1)
An electronic communication is
attributable to a person if the electronic communication resulted
from the action of the person, acting
in person, by his agent, or
by his electronic agent device.
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Attribution of electronic communications. |
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(2)
Attribution may be proven in
any manner, including by showing the efficacy of any security
procedure applied to determine the person
to whom the electronic
communication was attributable.
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(3)
An addressee is not entitled
to regard the electronic communication received as being what the
originator intended to send where the
addressee knew or ought
reasonably to have known, had he exercised reasonable care or used
an agreed procedure, that the transmission
resulted in any error in
the electronic communication as received.
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(4)
Nothing in this section
affects the law of agency or the law on the formation of
contracts.
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15.(1)
Where the originator of an
electronic communication has stated that the electronic
communication is conditional upon receipt of an
acknowledgement
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Acknowledgement of receipt of electronic communications. |
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(a)
the electronic communication is
to be treated as though it had never been sent until the
acknowledgement is received;
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(b)
if there is no agreement between
the originator and the addressee as to the particular form or
method of the acknowledgement to be
given, the addressee may give
an acknowledgement by any means of communication automated or
otherwise or by any conduct that is reasonably
sufficient to
indicate to the originator that the electronic communication has
been received.
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(2)
Where the originator indicates
that receipt of an electronic communication is required to be
acknowledged but has not stated that
the electronic communication
is conditional on receipt of the acknowledgement, and the
acknowledgement has not been received by the
originator within the
time specified or agreed or, if no time has been specified or
agreed, within a reasonable time, the originator
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(a)
may give notice to the addressee
stating that no acknowledgement has been received and specifying a
reasonable time by which the acknowledgement
must be received;
and
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(b)
if the acknowledgement is not
received within the time specified in paragraph (a), may, upon
notice to the addressee, treat the electronic
communication as
though it had never been sent or exercise any other rights the
originator may have.
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(3)
Where the received
acknowledgement states that the related electronic communication
met technical requirements, either agreed upon
or set forth in
applicable standards, it is presumed that those requirements have
been met.
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(4)
Except in so far as it relates
to the sending or receipt of the electronic record, this section is
not intended to deal with the legal
consequences that may flow
either from that electronic communication or from the
acknowledgement of its receipt.
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16.
Where any statutory or legal
requirement exists for a document to-be notarised, verified, or
made under oath, that requirement is
met if the electronic
signature of the person authorised to perform those acts, together
with all other information required to be
included by other
applicable statute, regulation, or rule of law, is attached to or
logically associated with the signature or record.
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Notarisation. |
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17.(1)
Where information is required
by law to be delivered, dispatched, given or sent to, or to be
served on, a person, that requirement
is met by doing so in the
form of an electronic communication provided that the originator of
the electronic communication states
that the receipt of the
electronic communication is to be acknowledged and the addressee
has acknowledged its receipt.
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Delivery, etc. |
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(2)
Subsection (1) applies whether
the requirement for delivery, dispatch, giving, sending or serving
is in the form of an obligation
or the law provides consequences
for the information not being delivered, dispatched, given, sent or
served.
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(3)
Subject to section 5, the
dispatch of an electronic communication occurs when it enters an
information processing system outside the control of the
originator.
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(4)
Subject to section 5, the time
of receipt of an electronic communication is determined as follows
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(a)
where the addressee has
designated an information processing system for the purpose of
receiving electronic communications, receipt
occurs -
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(i)
at the time when the electronic
communication enters the designated information processing system;
or
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(ii)
if the electronic communication
is sent to an information processing system of the addressee that
is not the designated information
processing system, at the time
when the electronic communication comes to the attention of the
addressee;
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(b)
where the addressee has not
designated an information processing system, receipt is deemed to
have occurred on the earlier happening
of -
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(i)
the time at which the electronic
communication enters an information processing system of the
addressee; or
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(ii)
otherwise comes to the attention
of the addressee.
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(5)
Subsection (4) shall apply
notwithstanding that the place where the information processing
system is located may be different from
the place where the
electronic communication is deemed to be received under subsection
(6).
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(6)
Unless otherwise agreed
between the originator and the addressee, an electronic
communication is deemed to be dispatched at the place
where the
originator has his place of business, and is deemed to be received
at the place where the addressee has his place of business.
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(7)
For the purposes of subsection
(6) -
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(a)
if the originator or the
addressee has more than one place of business, the place of
business is that which has the closest relationship
to the
transaction to which the electronic communication relates or, where
there is no such transaction, the place of business is
presumed to
be the principal place of business; or
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(b)
if the originator or the
addressee does not have a place of business, it is presumed to be
where the originator or the addressee ordinarily
resides.
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18.(1)
The generation of an
electronic form of a document for the purposes of this Part does
not constitute an infringement of the copyright
in a work or other
subject matter embodied in the document.
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Copyright. |
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(2)
The production, by means of an
electronic communication, of an electronic form of a document for
the purposes of this Part does not
constitute an infringement of
the copyright in a work or other subject matter embodied in the
document.
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INTERMEDIARIES AND E-COMMERCE SERVICE PROVIDERS |
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19.(1)
An intermediary shall not be
subject to any civil or criminal liability in respect of
third-party information contained in an electronic
communication
for which such intermediary is only providing access and he -
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Liability of intermediaries. |
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(a)
has no actual knowledge that the
information gives rise to civil or criminal liability;
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(b)
is not aware of any facts or
circumstances from which the likelihood of civil or criminal
liability in respect of the information
ought reasonably to have
been known; or
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(c)
follows the procedure set out in
section 20 if the intermediary -
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(i)
acquires knowledge that the
information gives rise to civil or criminal liability; or
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(ii)
becomes aware of facts or
circumstances from which the likelihood of civil or criminal
liability in respect of the information ought
reasonably to have
been known.
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(2)
An intermediary shall not be
required to monitor any information contained in an electronic
communication in respect of which the
intermediary provides
services in order to establish knowledge of, or to become aware of,
facts or circumstances to determine whether
or not the information
gives rise to civil or criminal liability.
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(3)
Nothing in this section shall
relieve an intermediary from complying with any court order,
injunction, writ, Ministerial direction,
regulatory requirement, or
contractual obligation in respect of an electronic
communication.
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(4)
For the purposes of this
section -
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"provides access", in relation to third-party information, means the provision of the necessary technical means by which third-party information may be accessed and includes the automatic and temporary storage of the third-party information for the purpose of providing access; |
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"third-party information" means information of which the intermediary is not the originator. |
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20.(1)
If an intermediary has actual
knowledge that the information in an electronic communication gives
rise to civil or criminal liability,
as soon as practicable
thereafter the intermediary shall -
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Procedure for dealing with unlawful, defamatory, etc. information. |
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(a)
remove the information from any
information processing system within the intermediary's control and
cease to provide or offer to provide
services in respect of that
information; and
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(b)
notify the police of the relevant
facts and of the identity of the person for whom the intermediary
was supplying services in respect
of the information, if the
identity of that person is known to the intermediary.
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(2)
If an intermediary is aware of
facts or circumstances from which the likelihood of civil or
criminal liability in respect of the information
in an electronic
communication ought reasonably to have been known, as soon as
practicable thereafter the intermediary shall -
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(a)
follow the relevant procedure set
out in any code of conduct that is applicable to such intermediary
under section 21; or
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(b)
notify the police and the
Minister.
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(3)
Upon being notified in respect
of any information under subsection (2), the Minister may direct
the intermediary to -
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(a)
remove the electronic
communication from any information processing system within the
control of the intermediary; and
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(b)
cease to provide services to the
person to whom the intermediary was supplying services in respect
of that electronic communication.
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(4)
An intermediary shall not be
liable, whether in contract, tort, under statute or pursuant to any
other right, to any person, including
any person on whose behalf
the intermediary provides services in respect of information in an
electronic communication, for any action
the intermediary takes in
good faith in exercise of the powers conferred by, or as directed
by the Minister under, this section.
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21.(1)
If a code of conduct is
approved-or a standard is appointed by the Minister under this
section to apply to intermediaries or e-commerce
service providers,
those intermediaries or e-commerce service providers shall comply
with such code of conduct or standard.
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Codes of conduct and standards for intermediaries and e-commerce service providers. |
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(2)
An intermediary or e-commerce
service provider who fails to comply with an approved code of
conduct or appointed standard, shall in
the first instance be given
a written warning by the Minister and the Minister may direct that
person to cease and desist or otherwise
to correct his practices,
and, if that person fails to do so within such period as may be
specified in the direction, he commits
an offence and shall be
liable on summary conviction to a fine not exceeding five thousand
dollars and if the offence is a continuing
one to a further fine of
five hundred dollars for each day the offence continues.
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(3)
If the Minister is satisfied
that a body or organization represents intermediaries or e-commerce
service providers, the Minister may,
by notice given to the body or
organization, request the body or organization to -
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(a)
develop a code of conduct that
applies to intermediaries or e-commerce service providers and that
deals with one or more specified
matters relating to the provision
of services by those intermediaries or e-commerce service
providers; and
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(b)
provide a copy of that code of
conduct to the Minister within such time as may be specified in the
request.
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(4)
If the Minister is satisfied
with the code of conduct provided under subsection (3), the
Minister shall approve the code of conduct
by notice published in
the Gazette and thereupon the code of conduct will apply to
intermediaries or e-commerce service providers
as the case may be,
as may be specified in the notice.
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(5)
If the Minister is satisfied
that -
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(a)
no body or organization
represents intermediaries or e-commerce service providers; or
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(b)
a body or organization to which
notice is given under subsection (3) has not complied with the
request of the Minister under that
subsection,
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the Minister may, by notice published in the Gazette, appoint a standard that applies to intermediaries or e-commerce service providers. |
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(6)
If the Minister has approved a
code of conduct or appointed a standard that applies to
intermediaries or e-commerce service providers
and -
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(a)
the Minister receives notice from
a body or organization representing intermediaries or e-commerce
service providers of proposals
to amend the code of conduct or
standard; or
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(b)
the Minister no longer considers
that the code of conduct or standard is appropriate,
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the Minister may, by notice published in the Gazette, revoke or amend any existing code of conduct or standard. |
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(7)
References in this section to
intermediaries or e-commerce service providers include reference to
a particular class of intermediary
or e-commerce service
provider.
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E-COMMERCE ADVISORY BOARD |
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22.(1)
There shall be a board to be
known as the "E-Commerce Advisory Board" for the purpose of
providing advice to the Minister on matters
connected with the
discharge of his functions under this Act and the development of
e-commerce and the information and communications
technology sector
generally.
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E-Commerce Advisory Board. |
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(2)
The Minister shall appoint the
members of the Board by notice published in the Gazette.
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(3)
The Board shall consist of not
less than five or more than nine persons appearing to the Minister
to be knowledgeable about electronic
commerce, information
technology, communications, finance education, law or international
business.
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(4)
The Minister shall designate
one of the persons appointed a member under subsection (2) to be
the chairman of the Board.
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(5)
The Board shall determine its
own procedure.
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(6)
The persons appointed under
subsection (2) shall hold office for such period and on such terms
as may be determined by the Minister.
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(7)
The function of the Board is
to advise the Minister on any matter referred to it by the Minister
or which, of its own initiative,
the Board considers
appropriate.
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PART V |
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GENERAL |
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23.(1)
Where a body corporate commits
an offence under this Act or regulations made hereunder, every
person who at the time of the commission
of the offence was a
director, officer, general manager, chief executive officer,
managing director of the corporation, or a person
purporting to act
in any such capacity commits the like offence unless he proves that
the contravention took place without his consent
or that he
exercised all due diligence to prevent the commission of the
offence.
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General provisions as to prosecutions under the Act. |
|
(2)
Unless otherwise expressly
provided for under this Act and regulations made pursuant thereto,
the penalty for conviction of an offence
under this Act shall be
-
|
||
(a)
on summary conviction, to a fine
not exceeding three thousand dollars or to imprisonment for twelve
months, or to both;
|
||
(b)
on conviction on information, to
a fine not exceeding one hundred thousand dollars or to
imprisonment for ten years, or to both.
|
||
24.(1)
The Minister may make
regulations -
|
Regulations. |
|
(a)
for the purpose of establishing
how electronic documents may be signed and verified;
|
||
(b)
respecting the use, import and
export of encryption technology, encryption programs, or other
encryption products;
|
||
(c)
for the purpose of authorising,
prohibiting or regulating the use of the .bs domain name or any
successor domain name for The Bahamas;
|
||
(d)
prescribing for the purposes of
the registration of the .bs domain name or any successor domain
name for The Bahamas -
|
||
(i)
designated registration
authorities;
|
||
(ii)
the form of registration;
|
||
(iii)
the period when registration
stays in force;
|
||
(iv)
the manner, the terms and the
period for renewal of registration;
|
||
(v)
the circumstances and manner in
which registration may be granted, renewed or refused by the
registration authorities;
|
||
(vi)
the appeal process;
|
||
(vii)
the fees to be paid on the grant
or renewal of registration and the time and manner they are to be
paid; and
|
||
(viii)
such other matters relating to
the registration of domain names;
|
||
(e)
generally for the better carrying
out of the provisions of this Act.
|
||
(2)
Notwithstanding section 25(e)
of the Interpretation and General Clauses Act, a person who
contravenes or fails to comply with a regulation
made pursuant to
subsection (1) is liable on summary conviction to a fine not
exceeding one thousand dollars.
|
Ch. 2. |
|
(3)
Regulations made under this
section are subject to the affirmative resolution of
Parliament.
|
||
(4)
The term "affirmative
resolution" as used in this section means that the regulations
shall not come into operation unless and until
affirmed by a
resolution of each House of Parliament.
|
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