PART 2

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

Legal Recognition of Electronic Communications and Information in Electronic Form

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

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

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

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

(ii) a trust, or

(iii) an enduring power of attorney,

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

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

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

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

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

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

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

(c) the public interest so requires,

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

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

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

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

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

(c) the Criminal Evidence Act, 1992 , or

(d) the Consumer Credit Act, 1995 , or any regulations made thereunder and the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 No. 27 of 1995 ).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) make an application,

(b) make or lodge a claim,

(c) make or lodge a return,

(d) make a request,

(e) make an unsworn declaration,

(f) lodge or issue a certificate,

(g) make, vary or cancel an election,

(h) lodge an objection,

(i) give a statement of reasons,

(j) record and disseminate a court order,

(k) give, send or serve a notification.

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

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

(a) where the signature is required or permitted to be given to a public body or to a person acting on behalf of a public body and the public body consents to the use of an electronic signature but requires that it be in accordance with particular information technology and procedural requirements (including that it be an advanced electronic signature, that it be based on a qualified certificate, that it be issued by an accredited certification service provider or that it be created by a secure signature creation device)— if the public body's requirements have been met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and

(b) where the signature is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body— if the person to whom the signature is required or permitted to be given consents to the use of an electronic signature.

(3) Subsections (1) and (2) are without prejudice to any other provision of this Act or law requiring or permitting an electronic communication to contain an electronic signature, an advanced electronic signature, an electronic signature based on a qualified certificate, an electronic signature created by a secure signature creation device or other technological requirements relating to an electronic signature.

14. —(1) If by law or otherwise a signature to a document is required to be witnessed (whether the requirement is in the form of an obligation or consequences flow from the signature not being witnessed) that requirement is taken to have been met if—

(a) the signature to be witnessed is an advanced electronic signature, based on a qualified certificate, of the person or public body by whom the document is required to be signed,

(b) the document contains an indication that the signature of that person or public body is required to be witnessed, and

(c) the signature of the person purporting to witness the signature to be witnessed is an advanced electronic signature, based on a qualified certificate.

(2) An advanced electronic signature based on a qualified certificate may be used as provided in subsection (1) only—

(a) where the signature required or permitted to be witnessed is on a document to be given to a public body or to a person acting on behalf of a public body and the public body consents to the use of an electronic signature of both the person attesting the document and witnessing the signature but requires that the document and signatures be in accordance with particular information technology and procedural requirements (including that a qualified certificate on which the signature or signatures are based be issued by an accredited certification service provider)— if the public body's requirements are met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and

(b) where the document on or in respect of which the signature is to be witnessed is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body— if the person to whom it is required or permitted to be given consents to the use of an advanced electronic signature based on a qualified certificate for that purpose.

15. —All electronic contracts within the State shall be subject to all existing consumer law and the role of the Director of Consumer Affairs in such legislation shall apply equally to consumer transactions, whether conducted electronically or non-electronically.

16. —(1) If by law or otherwise a seal is required to be affixed to a document (whether the requirement is in the form of an obligation or consequences flow from a seal not being affixed) then, subject to subsection (2), that requirement is taken to have been met if the document indicates that it is required to be under seal and it includes an advanced electronic signature, based on a qualified certificate, of the person or public body by whom it is required to be sealed.

(2) An advanced electronic signature based on a qualified certificate may be used as provided in subsection (1) only—

(a) where the document to be under seal is required or permitted to be given to a public body or to a person acting on behalf of a public body and the public body consents to the use of an electronic signature but requires that it be in accordance with particular information technology and procedural requirements (including that a qualified certificate on which it is based be issued by an accredited certification service provider)— if the public body's requirements have been met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and

(b) where the document to be under seal is required or permitted to be given to a person who is neither a public body nor acting on behalf of a public body— if the person to whom it is required or permitted to be given consents to the use of an advanced electronic signature based on a qualified certificate.

17. —(1) If by law or otherwise a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from the information not being presented or retained in its original form) or permitted to present or retain information in its original form, then, subject to subsection (2), the information may be presented or retained, as the case may be, in electronic form, whether as an electronic communication or otherwise.

(2) Information may be presented or retained as provided in subsection (1) only—

(a) if there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, whether as an electronic communication or otherwise,

(b) where it is required or permitted that the information be presented— if the information is capable of being displayed in intelligible form to a person or public body to whom it is to be presented,

(c) if, at the time the information was generated in its final form, it was reasonable to expect that it would be readily accessible so as to be useable for subsequent reference,

(d) where the information is required or permitted to be presented to or retained for a public body or for a person acting on behalf of a public body, and the public body consents to the information being presented or retained in electronic form, whether as an electronic communication or otherwise, but requires that it be presented or retained in accordance with particular information technology and procedural requirements— if the public body's requirements have been met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and

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

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

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

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

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

(4) For the purposes of subsections (1) and (2)—

(a) the criteria for assessing integrity is whether the information has remained complete and unaltered, apart from the addition of any endorsement or change which arises in the normal course of generating, communicating, processing, sending, receiving, recording, storing or displaying, and

(b) the standard of reliability shall be assessed in the light of the purpose for which and the circumstances in which the information was generated.

18. —(1) If by law or otherwise a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from the information not being retained or produced in its original form) or permitted to retain for a particular period or produce a document that is in the form of paper or other material on which information may be recorded in written form, then, subject to subsection (2), the person or public body may retain throughout the relevant period or, as the case may be, produce, the document in electronic form, whether as an electronic communication or otherwise.

(2) A document may be retained throughout the period, or produced, by the person or public body as provided in subsection (1) only—

(a) if there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form as an electronic communication,

(b) in the case of a document to be produced— if the information is capable of being displayed in intelligible form to the person or public body to whom it is to be produced,

(c) in the case of a document to be retained— if, at the time of the generation of the final electronic form of the document, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference,

(d) where the document is required or permitted to be retained for or produced to a public body or for or to a person acting on behalf of a public body, and the public body consents to the document being retained or produced in electronic form, whether as an electronic communication or otherwise, but requires that the electronic form of the document be retained or produced in accordance with particular information technology and procedural requirements— if the public body's requirements have been met and those requirements have been made public and are objective, transparent, proportionate and non-discriminatory, and

(e) where the document is required or permitted to be retained for or produced to a person who is neither a public body nor acting on behalf of a public body— if the person for or to whom the document is required or permitted to be retained or produced consents to it being retained or produced in that form.

(3) Subsections (1) and (2) are without prejudice to any other law requiring or permitting documents in the form of paper or other material to be retained or produced—

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

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

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

(4) For the purposes of subsections (1) and (2)—

(a) the criteria for assessing integrity is whether the information has remained complete and unaltered, apart from the addition of any endorsement or change which arises in the normal course of generating, communicating, processing, sending, receiving, recording, storing or displaying, and

(b) the standard of reliability shall be assessed in the light of the purpose for which the information was generated and the circumstances in which it was generated.

19. —(1) An electronic contract shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, or has been concluded wholly or partly by way of an electronic communication.

(2) In the formation of a contract, an offer, acceptance of an offer or any related communication (including any subsequent amendment, cancellation or revocation of the offer or acceptance of the offer) may, unless otherwise agreed by the parties, be communicated by means of an electronic communication.

20. —(1) Subject to any other law, where the originator of an electronic communication indicates that receipt of the electronic communication is required to be acknowledged but does not indicate a particular form or method of acknowledgement, then, unless the originator and the addressee of the electronic communication agree otherwise, the acknowledgement shall be given by way of an electronic communication or any other communication (including any conduct of the addressee) sufficient to indicate to the originator that the electronic communication has been received.

(2) Where the originator of an electronic communication indicates that receipt of the electronic communication is required to be acknowledged, the electronic communication, in relation to the establishing of legal rights and obligations between parties, shall, until the acknowledgement is received by the originator and unless the parties otherwise agree, be treated as if it had never been sent.

(3) Where the originator of an electronic communication has indicated that receipt of the electronic communication is required to be acknowledged but has not stated that the electronic communication is conditional on the receipt of 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, then the electronic communication, in relation to the establishing of legal rights and obligations between parties, shall, unless the parties otherwise agree, be treated as if it had never been sent.

21. —(1) Where an electronic communication enters an information system, or the first information system, outside the control of the originator, then, unless otherwise agreed between the originator and the addressee, it is taken to have been sent when it enters such information system or first information system.

(2) Where the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee or the law otherwise provides, the electronic communication is taken to have been received when it enters that information system.

(3) Where the addressee of an electronic communication has not designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee, the electronic communication is taken to have been received when it comes to the attention of the addressee.

(4) Subsections (1), (2) and (3) apply notwithstanding that the place where the relevant information system is located may be different from the place where the electronic communication is taken to have been sent or received, as the case may be, under those subsections.

(5) Unless otherwise agreed between the originator and the addressee of an electronic communication, the electronic communication is taken to have been sent from and received at, respectively, the place where the originator and the addressee have their places of business.

(6) For the purposes of subsection (5), but subject to subsection (7)—

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

(b) if the originator or addressee does not have a place of business, the place of business is taken to be the place where he or she ordinarily resides.

(7) If an electronic communication is or is in connection with a notification or other communication required or permitted by or under an Act to be sent or given to, or served on, a company at its registered office, the registered office is taken to be the place of business of the company in connection with that electronic communication for the purpose of subsection (5).

22. —In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to deny the admissibility in evidence of—

(a) an electronic communication, an electronic form of a document, an electronic contract, or writing in electronic form—

(i) on the sole ground that it is an electronic communication, an electronic form of a document, an electronic contract, or writing in electronic form, or

(ii) if it is the best evidence that the person or public body adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form,

or

(b) an electronic signature—

(i) on the sole ground that the signature is in electronic form, or is not an advanced electronic signature, or is not based on a qualified certificate, or is not based on a qualified certificate issued by an accredited certification service provider, or is not created by a secure signature creation device, or

(ii) if it is the best evidence that the person or public body adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

23. —All provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically.

General

24. —Nothing in this Act shall be construed as—

(a) requiring a person or public body to generate, communicate, produce, process, send, receive, record, retain, store or display any information, document or signature by or in electronic form, or

(b) prohibiting a person or public body engaging in an electronic transaction from establishing reasonable requirements about the manner in which the person will accept electronic communications, electronic signatures or electronic forms of documents.

25. —A person or public body who or which—

(a) knowingly accesses, copies or otherwise obtains possession of, or recreates, the signature creation device of another person or a public body, without the authorisation of that other person or public body, for the purpose of creating or allowing, or causing another person or public body to create, an unauthorised electronic signature using the signature creation device,

(b) knowingly alters, discloses or uses the signature creation device of another person or a public body, without the authorisation of that other person or public body or in excess of lawful authorisation, for the purpose of creating or allowing, or causing another person or public body to create, an unauthorised electronic signature using the signature creation device.

(c) knowingly creates, publishes, alters or otherwise uses a certificate or an electronic signature for a fraudulent or other unlawful purpose,

(d) knowingly misrepresents the person's or public body's identity or authorisation in requesting or accepting a certificate or in requesting suspension or revocation of a certificate,

(e) knowingly accesses, alters, discloses or uses the signature creation device of a certification service provider used to issue certificates, without the authorisation of the certification service provider or in excess of lawful authorisation, for the purpose of creating, or allowing or causing another person or a public body to create, an unauthorised electronic signature using the signature creation device, or

(f) knowingly publishes a certificate, or otherwise knowingly makes it available to anyone likely to rely on the certificate or on an electronic signature that is verifiable with reference to data such as codes, passwords, algorithms, public cryptographic keys or other data which are used for the purposes of verifying an electronic signature, listed in the certificate, if the person or public body knows that—

(i) the certification service provider listed in the certificate has not issued it,

(ii) the subscriber listed in the certificate has not accepted it, or

(iii) the certificate has been revoked or suspended, unless its publication is for the purpose of verifying an electronic signature created before such revocation or suspension, or giving notice of revocation or suspension,

is guilty of an offence.

26. —The provisions of section 25 extend to activities that took place partly outside the State.

27. —(1) Where, on the sworn information of an officer of the Minister or a member of the Garda Síochána not below the rank of Inspector, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence under this Act is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A warrant issued under this section shall authorise a named officer of the Minister or member of the Garda Síochána, alone or accompanied by such member or other members of the Garda Síochána and such other persons as may be necessary—

(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

(b) to search the place and any person reasonably suspected of being connected with any activities of the place found thereon, and

(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that officer or member reasonably believes to be evidence of or relating to an offence under this Act and, where the thing seized is or contains information or an electronic communication that cannot readily be accessed or put into intelligible form, to require the disclosure of the information or electronic communication in intelligible form.

(3) An officer of the Minister or member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the officer or member the person's name and address.

(4) A person who or public body which—

(a) obstructs or attempts to obstruct an officer of the Minister or member of the Garda Síochána acting in accordance with a warrant issued under subsection (1),

(b) fails or refuses to comply with a requirement under this section, or

(c) gives a name or address which is false or misleading,

is guilty of a summary offence.

(5) An officer of the Minister or member of the Garda Síochána may retain anything seized under subsection (2)(c) which he or she has reasonable grounds for believing to be evidence of an offence under this Act, for use as evidence in relation to proceedings in relation to any such offence, for such period as is reasonable or, if proceedings are commenced in which the thing is required to be used in evidence, until the conclusion of the proceedings.

(6) In this section, “place” includes any dwelling, any building or part of a building and any vehicle, vessel or structure.

28. —Nothing in this Act shall be construed as requiring the disclosure or enabling the seizure of unique data, such as codes, passwords, algorithms, private cryptographic keys, or other data, that may be necessary to render information or an electronic communication intelligible.