REPUBLIC OF VANUATU
BILL FOR THE ELECTRONIC
TRANSACTIONS ACT NO. OF 2000
Explanatory Note
The Bill sets out the legal principles for the conduct of electronic commerce and the processing of electronic transactions. The Bill lays a foundation for the conduct of electronic transactions that is sufficiently flexible to embrace new technological developments and that contemplates a high degree of self-regulation.
Part 1 - Preliminary matters
Clause 1 sets out the definitions used in the Bill. Clause 2 provides that the Government is not obliged to use records in electronic form. However, clause 3 enables the Minister by notice in the Gazette to indicate when and in relation to what matters a Government Department will receive and process records in electronic form.
Clause 4 sets out the objects of the Bill which include the enhancement of the reputation of Vanuatu as an international business centre. Clause 5 indicates the regulatory policy to be applied by the Minister in administering the Bill. Clause 6 excludes the application of Parts 2 and 3 to wills and conveyances of real property, and the existing legal formalities and requirements for writing will continue to apply to them. Clause 7 provides that the Minister may by order provide that parts of the Bill do not apply to particular matters or transactions identified in the regulations.
Part 2 - Legal requirements for electronic records
Clause 8 sets out the fundamental principle that an electronic record is not subject to legal challenge merely because it is in electronic form. Clause 9 provides that a legal requirement for writing is satisfied by an electronic record if the record is accessible and capable of retention for subsequent reference. Clause 10 provides that if information is required by law to be delivered or sent to a person it may be delivered or sent by electronic means.
Clause 11 provides that, where a signature is required by law, an electronic record meets that requirement if the method of identifying the signatory meets certain requirements. Clause 12 sets out the minimum requirements for an electronic record to be regarded as the functional equivalent of an original. Clause 13 sets out the requirements for the storage of documents, information or records in electronic form. Clause 14 provides that an electronic record will not be denied admissibility in evidence solely on the ground that it is in electronic form or that, if it is the best evidence, on the ground that it is not in the original form.
Part 3 - Communication of electronic records
Clause 15 provides that in the context of contract formation the fact that the transaction is conducted in electronic form does not affect its validity. Clause 16 deals with attribution of electronic records and provides that an electronic record is attributed to a particular person if it resulted from an action of that person or through an agent or electronic agent of that person.
Clause 17 deals with acknowledgement of receipt of electronic records and sets out rules to be applied in situations where the parties have agreed a form of acknowledgement, and where they have not. Clause 18 sets out rules governing the dispatch and receipt of electronic records and adopts the principle that the place of business of each of the parties is the governing criterion rather than the location of the information processing system.
Part 4 - Electronic signatures
Clause 19 provides that where an electronic signature is associated with an accredited certificate it is deemed to satisfy the requirements of an electronic signature set out in Clause 11. Clause 20 enables the Minister to authorise a certification service provider to issue accredited certificates which confirm the veracity of an electronic signature. Clause 21 enables the Minister to recognise certificates and certification service providers in any other jurisdiction and, upon recognition, the certificates are to be treated as equivalent to accredited certificates issued in Vanuatu.
Clause 22 enables pseudonyms to be used as electronic signatures subject to the right of the certification service provider, when required by law, to reveal the identity of the electronic signatory. Clause 23 provides that an authorised certification service provider is liable to any person who reasonably relies on an accredited certificate for the accuracy of the information in the certificate and for assurance that the person identified in the certificate held a signature creation device corresponding to the signature verification device identified in the certificate. However, the service provider is not liable for errors where the information was provided by or on behalf of the person to whom the certificate was issued.
Part 5 - Encryption and data protection
Clause 24 empowers the Minister to make orders relating to the use, import and export of encryption programs and other encryption products. The clause recites that it is lawful in Vanuatu to use encryption programs that have lawfully come into the possession of the user.
Clause 25 enables the Minister to make regulations with respect to the protection of personal data.
Part 6 - Intermediaries and e-commerce service providers
Clause 26 recognises that an intermediary, who merely provides a conduit, should not be liable for the content of electronic records if the intermediary has no actual knowledge or is not aware of facts that would objectively indicate a likelihood of civil or criminal liability in respect of material on the intermediary's network. Clause 27 sets out a procedure that intermediaries must follow if they become aware of facts or circumstances that give rise to civil or criminal liability in respect of information on their networks. The intermediary must remove the offensive material and notify the Minister of the identity of the client. The Minister may issue directions to require the intermediary to withdraw service to the client.
Clause 28 establishes a mechanism for the creation of codes of conduct or standards to be applied to intermediaries and e-commerce service providers. The intention is that a code of conduct will be developed by the industry, but if it fails to do so, the Minister may intervene and establish a standard. The matters that may be included in a code of conduct or standard include prohibited business activities, complaints and on-line dispute resolution procedures.
Clause 29 makes it an offence to contravene a code of conduct or standard.
Part 7 - General
Clause 30 provides general authority to make regulations, including prescribing penalties for offences against the regulations. Clause 31 provides that the Act commences on the day on which it is published in the Gazette.
Barak Tame Sope
Hon Prime Minister
August 2000