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Electronic contracts and signatures
Electronic contract availability
Are electronic contracts legally valid in your jurisdiction? If so, what rules and restrictions govern their formation (including any mandatory or prohibited provisions and contract formats)?
Electronic contracts are legally valid in Malta and are deemed to be formed (unless otherwise agreed by parties that are not consumers) when, after the placement of an order, the recipient of the service has received an acknowledgement of receipt from the service provider. Both the placement of an order and the acknowledgement of receipt are deemed to have been received when the addressee is able to access them and thus, the electronic contract is deemed to be concluded,
In terms of format, an electronic contract can take the form of any contract that is concluded wholly or partly by electronic communications or wholly or partly in an electronic form. Where the contract is provided in the form of terms and conditions, the service provider must make available such terms and conditions to the addressee in a way that allows the addressee to store and reproduce them.
Furthermore, a number of information requirements are mandatory in electronic contracts and must be provided in a clear, comprehensive and unambiguous manner. These include:
- the name, address and email of the service provider;
- the registration number of the service provider in any trade register or of any professional body (if applicable);
- where the activity is subject to an authorisation, the activities covered by the authorisation and the particulars of the authority granting such authorisation;
- the valued added tax (VAT) number of the service provider (if the service provider undertakes an activity subject to VAT);
- the different steps that must be followed to conclude the contract;
- the technical means for identifying and correcting input errors prior to the placing of the order;
- the language(s) in which the contract may be concluded;
- a statement of whether the concluded contract will be filed by the service provider and whether it will be accessible; and
- in relation to a regulated profession:
- any professional body or similar institution with which the service provider is registered;
- the professional title and the member state where it has been granted; and
- a reference to the applicable professional rules in the member state of establishment and the means to access them.
Any provisions that would be prohibited under general Maltese law are prohibited in an electronic contract.
4.1.2 Are there any limitations or restrictions on transactions that can be concluded through electronic contracts?
The Electronic Commerce Act (Chapter 426 of the Laws of Malta) (E-commerce Act) excludes concluding transactions through electronic contracts in relation to:
- information society services matters that are covered by data protection laws or that concern the activities of notaries, the representation of a client and defence of its interests before the courts and gambling activities (that are not covered by the Remote Gaming Regulations (Subsidiary Legislation 438.04 of Malta));
- agreements or practices governed by competition law;
- rights over immovable property (except for lease);
- contracts of suretyship and collateral security furnished by consumers;
- wills, trusts and power of attorneys;
- family law contracts;
- affidavits and solemn declarations;
- evidence in criminal proceedings; and
- court rules, practices and procedures.
Do any data retention requirements apply to electronic contracts?
Data retention specifically related to electronic contracts is not addressed under Maltese law. That being said, a number of retention requirements are provided under the E-commerce Act where information has been recorded in electronic form. These include, but are not limited to, the safeguarding of the integrity of the information recorded in electronic form.
Furthermore, data retention requirements that apply to standard contracts also apply to electronic contracts. For instance, under Maltese data protection law, personal data collected via contracting cannot be kept for longer than is necessary to fulfil the purpose for which it was originally collected.
Companies must generally keep documents and contracts relating to their business for a period of time as specified by sector-specific law, such as employment and tax related laws.
Are any special remedies available for the breach of electronic contracts?
Special remedies for the breach of electronic contracts are not available in Malta. The remedies that are available are the same as those available for standard contracts.
Are electronic signatures legally valid in your jurisdiction? If so, what rules and restrictions govern their use?
Electronic signatures are legally valid in Malta and are regulated under the E-commerce Act and the EU eIDAS Regulation (910/2014) on electronic identification and trust services for electronic transactions in the internal market.
Prior consent of the parties to a transaction signed electronically must be obtained for the validity of a contract concluded via electronic signatures. Malta recognises both advanced and qualified electronic signatures; neither type can be denied legal effect and admissibility as evidence in legal proceedings solely on the basis of the signature being in electronic form. A qualified electronic signature is considered to have a legal effect equivalent to a handwritten signature.
With regards to restrictions, various acts of misuse of an electronic signature are prohibited under the E-commerce Act.
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