JIS News

The advent of electronic commerce (e-commerce) and the rapid development of information and communication technology over the past decade, have revolutionized business practices across Jamaica.
As a result of these developments in communication and information technology, the Government of Jamaica, through the Ministry of Industry, Technology, Energy and Commerce (MITEC), has developed a new piece of legislation called the Electronic Transactions Bill, which will facilitate a safer and easier way to do business online.
“In recent times, there has been an increase in the use of the Internet to conduct transactions and these range from purchasing a book online to purchasing a ticket. This has resulted in what we would call e-commerce. Presently, most financial institutions offer e-banking services and within government, services are being offered online by entities, such as Jamaica Customs and Trade Board,” Wahkeene Murray, Legal Officer at MITEC informs JIS News.
“These entities, however, are conducting their operations under a legal framework that is heavily dependent on documents that are in writing and signatures that are hand written. The purpose of the Bill is to create the requirements and to bring these requirements in line with the electronic age,” she adds.
The Bill that was passed in the House of Representatives on November 14 seeks to make the legal framework by which e-commerce will be governed and will seek to facilitate electronic transactions by means of reliable electronic communication.
“We are hoping that the Bill will eliminate the barriers which presently exist regarding uncertainties over writing and signature requirements, thereby promoting public confidence in the integrity and reliability of electronic transactions,” Miss Murray says.
She points out that the Bill seeks to promote public confidence in the integrity of electronic communication and electronic transactions, in particular through the use of electronic signatures.
Miss Murray informs JIS News that another objective of the Bill is to, “facilitate electronic filing of information with government agencies and statutory corporations and promote efficient delivery of government services by means of reliable electronic communication”.
The Bill will address several issues, such as the legal recognition of electronic documents.
“The Bill now gives legal effect, validity and admissibility to information communicated, created or stored electronically. As such, these documents will not have any less effect than a traditional, non electronic document,” Miss Murray emphasizes.
She adds that, “not because it is not on hard copy, it does not mean that the document is not valid and has no legal effect”. Another issue that the Bill addresses is the matter of security in doing business online.
“The Bill recognizes electronic signatures, because one of the things that is required now is hand written signatures and what the Bill does is that it ensures that there should be no issue arising over how one identifies or verify that the author of the document is in fact the author of the document,” Miss Murray explains.
She says that parties to electronic contracts must be satisfied that the sender and receiver in the electronic transactions are who they purport to be. They must also be convinced that their electronic record can be authenticated and not forged while in transit.
“The safety concerns addressed in the Bill relate chiefly to electronic signatures, that is information which is contained in or attached to an electronic document and is used by an individual to indicate his adoption of the content of that document,” Miss. Murray notes.
The Bill requires that signatures in an electronic document must be capable of identifying the person, it must be uniquely linked to the person and the signature must be created by using a means that the person can maintain under his sole control.
“Government is mindful of the potential dangers inherent in the use of the Internet. These include abuse of privacy, cyber piracy, and misuse of personal data, and computer hacking. Therefore, companion legislations will be promulgated to address these mischiefs,” Miss Murray tells JIS News.
The Bill will allow for the admissibility and evidential weight of electronic information in the court system.
“In legal proceedings, information or communication that is given electronically is admissible in court. Therefore, the court should not refuse to admit evidence solely on the ground that it is in electronic form or that it is not in its original form,” she says.
She adds that when the court is looking at evidential weight, the Bill requires that certain things be taken into consideration such as the “reliability of the manner in which the information was generated, stored or communicated and the manner in which the integrity of the information was maintained”.
“The Bill provides legal certainty as to the conclusion of contracts by electronic means and confirms that contracts can be formed electronically, provided of course that the parties agree to form a contract in that manner,” Miss Murray says.
Persons who transact business online are the persons who will be most affected by this Bill, as it only applies to transactions between parties who have agreed to conduct a transaction electronically.
Miss Murray points out that the Bill does not cover every type of transaction and specifically excludes from the operation of the Bill the following transactions: the making, execution, alteration or revocation of Wills and testamentary documents; the conveyance or transfer of real property or interest in real property; the creation, variation, performance or variation of any trust or power of attorney and any procedure governed by the Civil Procedure Rules 2002 or by rules of court made pursuant to any law.
Any person who contravenes any provision of the Bill or any regulations made under the Bill can be liable upon conviction before a Resident Magistrate, to a fine not exceeding $1 million or to imprisonment for a term not exceeding one year, or to both such fines and imprisonment.
“If however, the individual is convicted before a Circuit Court, he or she can be liable to a fine or imprisonment for a term not exceeding five years or to both such fine and imprisonment,” Miss Murray notes.
“Where a body corporate commits an offence under the Act and the offence is proved to have been committed with the consent or connivance of any Director, Manager or other similar officer of the body corporate, or any person purporting to act in any such capacity, that officer or person as well as the body corporate shall be liable for the offence,” she says.
Miss Murray tells JIS News that the Bill will aid in the development of e-commerce in Jamaica. “We live in a global village and the Internet is being used to do much of the business across the world. The Government is desirous of seeing Jamaica become the e-commerce hub of the Caribbean and the Bill will aid in this development,” she adds.
The Bill, the Legal Officer says, will provide numerous benefits to ordinary citizens of Jamaica.”It will provide increased convenience and choice for consumers. For example, the provision of e-banking services has the potential to greatly enhance the nation’s productivity, as persons can transact business, including paying bills. Therefore, countless hours which would be spent in banks have been saved by persons who use this service,” she says.
Miss Murray argues that the Bill will also result in the extension of market reach for businesses and afford legal protection and certainty for consumers, businesses and industries.
She points out that the Bill was widely circulated within the business community and they were given an opportunity to review and provide comments.
Joylene Griffith Irving, Director of Public, Corporate and Government Affairs at Scotia Bank Jamaica Limited, says she endorses the Bill.”We welcome it as it will facilitate transactions online and sale of services online,” Mrs. Griffith Irving says.
Piloting the Bill in the Houses of Representative on November 14, Minister of Industry, Technology, Energy and Commerce, Phillip Paulwell stressed that the Bill “is one piece of companion legislation that will enable us to deal with the new world of doing business and that world is via the internet”.
“This Bill sets the framework and establishes the new system of doing business that will give people confidence to transact business electronically. It sets up the infrastructure to enable verification and to authenticate businesses that are engaged in electronic transactions,” Mr. Paulwell informed.