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 r

equirements? • Can electronic images be used in contract form

ation?• Would electronic images be admissible in cour

t as evidence?

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Government Policy• To encourage the wider use of information techn

ology by the Government and the private sector

• To provide a favourable environment for e-commerce to flourish in Hong Kong 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

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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

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Solution

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• 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

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

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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

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• 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

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Legal Recognition of Electronic Records (Cont'd)

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

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Legal Recognition of Electronic Records (Cont'd)• “information” includes data, text, images, sound

codes, computer programmes, software and databases

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.)

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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

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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.

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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.

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Exemption of Generic Items

Exemption

Government conditions

of grant and lease

Government conditions

of grant and lease

negotiableinstruments wills and trust

documents relating to land and

propertytransactions

stamp duty instruments

(non-listed stocks)

oaths and affidavits statutory declarations

judgments andcourt order

power of attorney

search and arrestwarrants

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Exemption of Judicial Proceedings

Court of Appeal Court of Final Appeal Court of First Instance

District Court

Obscene Articles TribunalLabour Tribunal

Small Claims Tribunal Mental Health Review Tribunal

Magistracy

Lands Tribunal Coroner's Court

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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

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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

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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

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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

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Legislative Programme• Passage of the ETO by LegCo 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

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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

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Thank You