Doing business in a modern society
JAMAICA has long had a goal of becoming a commercial leader on par with the most developed nations of the world. In the globalised modern landscape, a big part of fulfilling this goal is participation in the “digital economy”. With that in mind, the Government of Jamaica passed the Electronic Transactions Act (ETA).
The ETA was passed by Parliament with the objects being to:
1) Facilitate electronic transactions by means of reliable electronic documents;
2) Promote the development of the legal and business infrastructure necessary to implement secure electronic commerce;
3) Eliminate barriers to electronic commerce resulting from uncertainties over writing and signature requirements;
4) Promote public confidence in the integrity and reliability of electronic documents and electronic transactions, in particular through the use of encrypted signatures to ensure the authenticity and integrity of electronic documents;
5) Establish uniformity of legal rules and standards regarding the authentication and integrity of electronic documents; and
6) Facilitate the electronic filing of information with Government agencies and statutory bodies and to promote the efficient delivery of Government services by means of reliable electronic documents.
THE PROVISIONS OF THE ETA PROVIDE THAT THEY DO NOT A PPLY TO:
1) The making, execution, alteration or revocation of a will or other testamentary instrument.
2) The conveyance or transfer of real property or any interest in real property.
3) The creation, variation, performance or enforcement of any (a) trust; or
(b) power of attorney.
4) Any procedure governed by the Civil Procedures Rules, 2002, or by rules of court made pursuant to any law.
Although the ETA was passed as far back as 2007, I wonder if it has yet achieved the desired impact on the day-to-day operation of commerce in Jamaica.
(1) Where any law requires, or refers to, the giving of information in writing, information that is given electronically shall be taken to be given in writing if
(a) when the information was given, it was reasonable to expect that the information would be readily accessible to, and capable of retention for subsequent reference by, the addressee;
(b) where the information is to be given to the Government and the Government requires:
i. that the information be given in a particular way in accordance with particular technology requirements; or
ii. that particular action be taken to verify the receipt of the information, the Government’s requirement has been met; and
(c) where the information is to be given to a person other than the Government, that person consents to the information being given electronically. I still
Section 7 applies to any requirement or permission “to give information”, provided for under Jamaican law that is not expressly excluded by the provisions of the ETA.
‘’the giving of information” includes:
(a) making an application;
(b) making or lodging a claim; (c) serving a notice;
(d) lodging a return;
(e) malting a request;
(f) making a declaration;
(g) lodging or issuing a certificate;
(h) lodging an objection;
(i) giving a statement of reasons.
Additionally, where a law requires more than one copy of the information to be submitted to a person, the ETA provides that the requirement will be taken to have been satisfied by giving the information to the person electronically in accordance with the provisions of the ETA. This could save businesses on paper costs and have a substantial impact on waste produced by commercial entities.
Lodging a return could include filing annual returns with the Companies Office of Jamaica, filing a tax return with the Tax Administration of Jamaica or a filing made under any applicable law which calls for the delivery of a return. With all of the above in mind, section 7 of the ETA seems to be quite useful.
After the ETA came into force, any law requiring a person’s signature in relation to any information shall be taken to have been met where the information is given electronically, a method is used to identify the person and to show the person’s approval of the information given and having regard to all the relevant circumstances when that method was used, including any relevant agreement, the method was as reliable as was appropriate for the purposes for which the information was communicated.
It should also be noted that, if the signature is to be given to the Government, the Government requires that the method used be in accordance with particular information technology requirements. The Government’s requirements being met is a precondition for the acceptability of the chosen method.
Unfortunately, as of the date of writing this article, I have not seen any document issued by the Government of Jamaica, that is available to the general public, to indicate its standard information technology requirements for electronically signed documents. The lack of such a document in my view may explain, at least in part, the reason for the slow adoption of electronic signatures as the modus operandi for most agencies in Jamaica.