Liability of Intermediaries
In June 2000 the States of Guernsey (the island's Parliament) approved draft legislation to facilitate electronic transactions in Guernsey. The Electronic Transactions (Guernsey) Law 2000 is considered crucial to Guernsey's development as an offshore e-commerce jurisdiction, capable of providing a whole range of services to electronic businesses.
The law, which will come into force in stages, deals with the following issues.
Anything that is capable of being done by electronic means shall be given the same legal effect and be treated in the same manner as if done by physical means. For example, contracts which have been concluded electronically are not to be denied legal enforceability or admissibility in court solely because they are in electronic form.
The law permits any requirement of law (whether statutory or customary) for written form (eg, a signature, a statement or declaration, a seal, records, mode of transmission, service or storage) to be satisfied if made or carried out in electronic form.
There is to be no obligation to use or accept electronic means for any of the above. However, the States of Guernsey (the States) may, by ordinance (ie, subordinate legislation), prescribe circumstances in which a person is obliged to execute or accept something in electronic form.
The Advisory and Finance Committee of the States may, by order, make or modify any provisions regarding certain types of transactions in relation to the use of a particular electronic form or means of communication.
The States may introduce legislation:
- in respect of service of documents, regarding the deemed time and place of service, in order to provide for certainty in such transactions;
- to prescribe rules for electronic communication, in order to ensure a binding obligation in respect of any communication which complies with those rules and any right to opt out of such rules; and
- to clarify the legal status of transactions made by electronic agents (ie, a computer program or electronic or other automated means that is used independently to initiate an action to respond to information or actions, without review or action by natural persons).
The law clarifies the extent of the criminal and civil liability of service providers and persons who provide host services.
It has been declared that the use and application of encryption and decryption technology are not unlawful.
The new law will essentially serve two main purposes. Firstly, it will facilitate e-commerce by removing any legal obstacles to enforcement, recognition and admissibility. Secondly, it will provide a framework by which the States may legislate on certain matters in an efficient and timely manner. The law enables the adoption of a fast-track procedure for the introduction of ordinances of the States which may be enacted locally. Further, the Advisory and Finance Committee, on behalf of the States, may introduce provisions to deal with practical and procedural matters.
For further information on this topic please contact Sean Cheong at Collas Day by telephone (+44 1481 723191) or by fax (+44 1481 711880) or by e-mail ([email protected]).
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