Legality of Electronic Images under the Electronic Transactions

Legality of Electronic Images under the Electronic Transactions Ordinance Presentation by Mr Alan Siu, Deputy Secretary for Information Technology and Broadcasting

Legality of Electronic Images Issues. . . • Can electronic images be used to satisfy legal requirements? • Can electronic images be used in contract formation? • Would electronic images be admissible in court as evidence? 2

Government Policy • To encourage the wider use of information technology by the Government and the private sector • To provide a favourable environment for ecommerce to flourish in Hong Kong ð Facilitating the use of electronic images, or electronic records more generally, in legal and commercial dealings is an important part of the Government’s e-commerce strategy 3

Problem • many of the legislation were written long before the development of e-commerce • by requiring the use of paper documents, or by stipulating that certain records should be kept or presented in paper form, some legislation had the unintended effect of preventing certain transactions from being conducted electronically 4

Solution • Enactment of the Electronic Transactions Ordinance (ETO) earlier this year to give electronic records the same legal status as that of their paper-based counterparts • The ETO also gives digital signatures the same legal status as paper-based signatures and establishes a voluntary recognition scheme for certification authorities operating in Hong Kong 5

Approach • Largely follow the United Nations Commission on International Trade Law Model Law on Electronic Commerce • Make reference to legislation elsewhere • Make adaption to cater for local circumstances 6

Legal Recognition of Electronic Records • Where a rule of law requires information to be given in writing, that requirement is met by electronic records • Where a rule of law requires information to be retained; or retained or presented in the original form, that requirement is met by retaining or presenting the information in the form of electronic records 7

Legal Recognition of Electronic Records (Cont'd) • Contracts shall not be denied legal effect solely on the ground that electronic records are used in their formation • Electronic records shall not be denied admissibility as evidence in court on the sole ground that they are electronic records 8

Legal Recognition of Electronic Records (Cont'd) • “electronic record” is defined in the ETO as a record generated in digital form by an information system, which can be (a) transmitted within an information system or from one information system to another; and (b) stored in an information system to another • “record” is defined as information that is inscribed on, stored in or otherwise fixed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form 9

Legal Recognition of Electronic Records (Cont'd) • “information” includes data, text, images, sound codes, computer programmes, software and databases ð It follows that the legal recognition given to electronic records by the ETO covers electronic records that contains images (e. g. pictures, graphics, drawings, etc. ) 10

Acceptance of Electronic Records • If electronic information is acceptable under a rule of law, SITB may specify manner, format and procedure of submission • The rule of law is satisfied only if the specification is complied with • The manner, format and procedure have been specified by notice published in the Gazette on 7 April 2000 11

Acceptance of Electronic Records (Cont'd) • Use of electronic records and digital signatures in communication between two non-government parties under a rule of law is subject to mutual consent • No impact on specific provision on electronic process in a rule of law, e. g. Import and Export Ordinance, etc. 12

Acceptance of Electronic Records (Cont'd) • No impact on a rule of law which contains other requirements which are incompatible with the electronic process, e. g. the document has to be under seal, etc. 13

Exemption of Generic Items Government negotiable conditions instruments of grant and lease documents relating to land property transactions oaths and affidavits wills and trust Exemption power of attorney stamp duty instruments (non-listed stocks) search and arrest warrants statutory declarations judgments and court order 14

Exemption of Judicial Proceedings Court of Appeal Court of Final Appeal Court of First Instance Magistracy District Court Lands Tribunal Coroner's Court Labour Tribunal Obscene Articles Tribunal Small Claims Tribunal Mental Health Review Tribunal 15

Exemption of Specific Statutory Provisions • Exemption are made in cases where electronic information cannot be accepted by Government bodies for operational, technological or other reasons under a rule of law 16

Grounds of Exemption • solemnity of the matter or document involved, e. g. some of the electoral provisions • operational reasons, e. g. the production of documents on the spot to Government authorities • the provision involves the submission of voluminous documents and complicated plans, e. g. submission to the works departments 17

Grounds of Exemption (Cont’d) • international practices, e. g. the keeping of documents by flight crew for air navigation purposes • contractual obligations, e. g. exclusive services of Tradelink in the electronic submission of trade-related documents 18

Exemption Work • Exemption for existing legislation made in one go through the Electronic Transactions (Exclusion) Order which has come into effect on 7 April 2000 • Less than 200 statutory provisions (out of 44, 000) in the laws of Hong Kong are exempt • New exemptions to be considered when new legislation is introduced • Exemptions made to be withdrawn where appropriate in future, e. g. voter registration 19

Legislative Programme • Passage of the ETO by Leg. Co on 5 January 2000 • Commencement of provisions in stages to tie in with enactment of subsidiary legislation • The last batch of provisions of the ETO has come into operation on 7 April 2000 • Review of legislation in 18 months 20

Situation Elsewhere • UK, Canada, Australia, Singapore and South Korea have enacted comprehensive legislation on electronic transactions • Germany, Malaysia and some states of USA, e. g. Utah, have enacted legislation on digital signature 21

Thank You