trinidad and tobago republic of trinidad and tobago · pdf...

AN ACT to give legal effect to electronic documents,electronic records, electronic signatures and electronictransactions

[Assented to 28th April, 2011]

ENACTED by the Parliament of Trinidad and Tobago asfollows:

PART IPRELIMINARY

1. (1) This Act may be cited as the ElectronicTransactions Act, 2011.

Enactment

First Session Tenth Parliament Republic ofTrinidad and Tobago

REPUBLIC OF TRINIDAD AND TOBAGO

Act No. 6 of 2011

[L.S.]

Legal Supplement Part A to the “Trinidad and Tobago Gazette”, Vol. 50,No. 61, 3rd May, 2011

Short title andcommencement

(2) This Act shall come into operation on such dayas is fixed by the President by Proclamation.

2. In this Act—

“addressee” in relation to a data message,means a person who is intended by theoriginator to receive the data message butdoes not include a person acting as anintermediary or telecommunicationsservice provider with respect to that datamessage;

“consumer” means any person who enters orintends to enter into an electronictransaction with a supplier as the enduser of the goods or services offered by thesupplier;

“Court” means the High Court of Trinidad andTobago;

“computer-mediated networks” means thenetworks established by the logical orphysical interconnection of multipleinformation systems, whether belonging tothe same or multiple persons, facilitated bypublic or private telecommunicationsnetworks;

“data” means the content including but notlimited to the text, images or sound whichmake up a data message;

“data message” means any document,correspondence, memorandum, book,plans, map, drawing, diagram, pictorialor graphic work, photograph, audio orvideo recording, machine-readablesymbols generated, sent, received orstored by any electronic means by or onbehalf of the person it represents;

Interpretation

24 No. 6 Electronic Transactions 2011

“electronic” means being in digital or intangibleforms with the capability of creation,storage, transmission or receipt byelectronic, magnetic, wireless, optical,biometric or any other similar means;

“electronic agent” means a program or otherelectronic or automated means configuredand enabled by a person that is used toinitiate or respond to data messages orperformance in whole or in part withoutreview or intervention by a person at thetime of the initiation or response;

“electronic authentication product” means aproduct designed to identify the holder ofan electronic signature to another person;

“Electronic Authentication Service provider”means a person who issues electronicauthentication products and servicesrelated thereto;

“electronic record” means a record created,stored, generated, received orcommunicated by electronic means;

“electronic signature” means information inelectronic form affixed to, or logicallyassociated with a data message whichmay be used to—

(a) identify the signatory inrelation to that data message;or

(b) indicate the signatory’sapproval of the informationcontained within that datamessage;

“electronic transaction” includes the singlecommunication or outcome of multiplecommunications involved in the sale or

No. 6 Electronic Transactions 2011 25

purchase of goods and services conductedover computer-mediated networks orinformation systems, where the goods andservices may be ordered through suchnetworks or systems but the payment andultimate delivery of the goods and servicesmay occur without the use of suchnetworks or systems;

“enterprise” means a partnership or body,whether corporate or unincorporated,engaged in business;

“individual” means a natural person;

“information” includes data, codes, computerprograms, software and databases;

“information system” means a device orcombination of devices including inputand output devices capable of being usedin conjunction with external files whichcontain computer programs, electronicinstructions, input data and output datathat perform logic, arithmetic, datastorage and retrieval, communicationcontrol and other functions but does notinclude a calculator;

“intermediary” with respect to a data messagemeans a person who on behalf of anotherperson, sends, transports, receives orstores that data message or providesother services with respect to that datamessage including the provision ofcontent, e-mail, caching and hostingservices;

“Minister” means the Minister to whomresponsibility for Information andCommunication Technology is assigned;


“originator” in relation to a data messagemeans a person by whom or on whosebehalf the data message purports to havebeen sent or generated prior to storage,but does not include a person acting as anintermediary or telecommunicationsservice provider with respect to that datamessage;

“products” includes services;

“public body” means—

(a) Parliament, a Joint Select Committeeof Parliament or a committee ofeither House of Parliament;

(b) the Court of Appeal, the HighCourt, the Industrial Court, theTax Appeal Board or any court ofsummary jurisdiction;

(c) the Cabinet as constituted underthe Constitution, a Ministry orDepartment, Division or Agency ofa Ministry;

(d) the Tobago House of Assembly, theExecutive Council of the TobagoHouse of Assembly or a division ofthe Tobago House of Assembly;

(e) a municipal corporation establishedunder the Municipal CorporationsAct;

(f) a statutory body, responsibility forwhich is assigned to a Minister ofGovernment;


(g) a company incorporated under thelaws of Trinidad and Tobago thatis owned or controlled by the State;

(h) a Service Commission establishedunder the Constitution or otherwritten law; or

(i) a body corporate or anunincorporated entity in relationto any function that it exercises onbehalf of the State, or which issupported, directly or indirectly byGovernment funds and over whichGovernment is in a position toexercise control;

“record” means recorded information collected,created or received in the initiation,conduct or completion of an activity andthat comprises sufficient content, contextand structure to provide evidence or proofof that activity or transaction;

“signatory” means a person who may or maynot hold a signature-creation device andacts either on his or its own behalf or onbehalf of another person to create anelectronic signature; and

“telecommunications service provider” means aprovider of telecommunications serviceswithin the meaning of theTelecommunications Act.

3. This Act binds the State.

4. Notwithstanding section 3, nothing in this Act shallby itself compel any public body to accept or issue anydocument or information in the form of electronicrecords.

Act binds the State

No requirement toaccept or issuedocument orinformation inelectronic form


5. This Act shall be construed consistently with whatis commercially reasonable under the circumstancesand to give effect to the following purposes to:

(a) facilitate electronic transactions;

(b) facilitate electronic commerce, to eliminatebarriers to electronic commerce resultingfrom uncertainties over writing andsignature requirements, and to promote thedevelopment of the legal and businessinfrastructure necessary to implementsecure electronic commerce;

(c) facilitate electronic filing of documents withpublic bodies, and to promote efficientdelivery by public bodies of services bymeans of reliable electronic records;

(d) help to establish uniformity of rules,regulations and standards regarding theauthentication and integrity of electronicrecords; and

(e) promote public confidence in the integrityand reliability of electronic records andelectronic commerce, and to foster thedevelopment of electronic commercethrough the use of electronic signatures tolend authenticity and integrity tocorrespondence in any electronic medium.

6. Parts II, III and IV of this Act shall not apply to anywritten law requiring writing, signatures or originaldocuments for—

(a) the making, execution or revocation of a willor testamentary instrument;

(b) the conveyance of real or personal propertyor the transfer of any interest in real orpersonal property;

Purposes andconstruction

Inapplicability of Act


(c) the creation, performance or enforcement ofan indenture, declaration of trust or powerof attorney;

(d) the production of documents relating toimmigration, citizenship or passportmatters; or

(e) the recognition or endorsement of nego-tiable instruments.

7. (1) This Act does not require a person who uses,provides, accepts or retains—

(a) documents;(b) records; or(c) information,

to use, provide, accept or retain in these electronic form.

(2) Notwithstanding subsection (1), with regard toparties to a transaction, either party’s consent to use,provide, accept or retain documents, records orinformation in electronic form in the course of thattransaction may be inferred by past conduct.

PART II

REQUIREMENT FOR LEGAL RECOGNITION

8. Information or a record in electronic form or a datamessage shall not be denied legal effect, admissibility orenforceability solely on the grounds that it is—

(a) rendered or made available in electronicform; or

(b) not contained in the information, datamessage, or record in electronic formpurporting to give rise to such legal effectbut is referred to in that information, datamessage or record.

Voluntary use ofelectronictransactions

Legal recognition ofelectronictransactions


9. The legal requirement that information, arecord or a data message be in writing is satisfied wherethat information, record or data message is presented inelectronic form, if the information, record or datamessage is accessible and capable of retention forsubsequent reference.

10. (1) The legal requirement that information, arecord or a data message be provided or sent to a personmay be met by providing or sending the information,record or data message by electronic means.

(2) For the purpose of this Act, information or arecord in electronic form or a data message is notprovided or sent to a person if it is merely madeavailable for access by the person and is not capable ofbeing retained.

11. Where a written law requires information, arecord or a data message to be presented in a specifiednon-electronic form, that requirement is satisfied if theinformation or record in electronic form or the datamessage—

(a) contains substantially the sameinformation; and

(b) is accessible and retainable so as to beusable for subsequent reference.

12. (1) Where a written law requires information, arecord or a data message to be presented or retained inits original form, that requirement is satisfied by theinformation, record or data message being presented inelectronic form if—

(a) there exists a reliable assurance as to themaintenance of the integrity of theinformation or record in electronic form orthe data message by the person whopresented the information; and

Writing

Provision ofinformation

Specifiednon-electronic form

Original form


(b) it is to be presented to a person, theinformation or record in electronic form orthe data message in electronic form isaccessible and capable of retention forsubsequent reference.

(2) The criterion for assessing integrity undersubsection (1) shall be whether the information orrecord in electronic form or a data message hasremained complete and unaltered, apart from theintroduction of any changes that arise in the normalcourse of communication, storage and display.

(3) Reliability under subsection (1) shall bedetermined in light of all the circumstances, includingthe purpose for which the information or record inelectronic form or the data message was created.

13. Where a written law requires that certaininformation, records or data messages be retained, thatrequirement is satisfied by retaining the information,data messages or records in electronic form.

14. Information or record in electronic form or a datamessage is not capable of being retained if the personproviding the information, record or data messageprevents or does anything to hinder its printing, audioor video playback or storage by the recipient.

15. Where information, a record or a data message isprovided in electronic form, a requirement under anywritten law for one or more copies of the information,record or data message to be provided to a singleaddressee at the same time is satisfied by providing asingle copy in electronic form.

16. A copy of a data message containing an electronicsignature shall be as valid, enforceable and effective asa document, record or other communication containinga non-electronic signature.

Electronically signedmessage deemed tobe original document

Whether information,a data message or arecord is capable ofbeing retained

Copies

Rention ofinformation, datamessages or recordsin electronic form


17. Information or record in electronic form or a datamessage will not be deemed inadmissible as evidence—

(a) solely on the ground that it is in electronicform; or

(b) on the ground that it is not in the originalnon-electronic form, if it is the best evidence.

18. Where information or a signature, document orrecord is required by a statutory provision or rule of law,or by contract or deed to be notarized, acknowledged orverified, the requirement shall be satisfied if, in relationto an electronic signature, electronic document orelectronic record, the electronic signature of the personauthorized to perform those acts, together with all otherinformation required to be included by other applicablelaw, is attached to or logically associated with theelectronic signature, electronic document or electronicrecord to be notarized, acknowledged or verified.

PART III

CONTRACT FORMATION AND DEFAULT PROVISION

19. In the context of contract formation—

(a) an offer or the acceptance of an offer orany other matter that is material in theoperation or formation of a contract may beexpressed by means of information or recordin electronic form or a data message; and

(b) the fact that a transaction is conductedin electronic form or that information or arecord of the negotiation or formation of acontract is in electronic form does not affectits legal effect, validity or enforceability.

20. Unless parties agree otherwise, an offer or theacceptance of an offer or any other matter that ismaterial to the operation or formation of a contract may

Admissibility andevidental weight ofelectronic records

ElectronicNotarization

Formation andvalidity of contracts

Electronicexpression of offerand acceptance


be expressed by means of information, a data messageor a record in electronic form, including by an activity inelectronic form such as touching or clicking on anappropriately designated icon or place on the computerscreen or otherwise communicating electronically in amanner that is intended to express the offer, acceptanceor other matter.

21. A contract formed through the interaction of anelectronic agent and a person or by the interaction ofelectronic agents shall not be denied legal validity andenforceability solely on the ground that no personreviewed or intervened in each of the individual actionscarried out by the electronic agent.

22. (1) A contract concluded or a transaction undertak-en in an electronic environment through the interactionof a person and an electronic agent of another person isvoid where—

(a) the first referred person made a materialerror in the information or data message;

(b) the electronic agent of the second referredperson did not provide an opportunity toprevent or correct the error;

(c) on becoming aware of the error, the firstreferred person notifies the second referredperson of the error;

(d) the second referred person has taken noreasonable steps to correct the error; and

(e) the first referred person has not received orused any material benefit or value from thesecond referred person.

(2) Subsection (1) shall not apply to electronicauctions.

23.A data message or record in electronic form isattributed to a particular person if it resulted from anaction of that person or through an agent or electronicagent of that person.

Use of electronicagents for contractformation

Error that occurswhile dealing withan electronic agent

Attribution of datamessages or records


24. Unless the originator and addressee agreeotherwise, information in electronic form or a datamessage is sent—

(a) when it leaves the information systemunder the control of the originator; or

(b) in the case where the originator and theaddressee are in the same informationsystem, when the information in electronicform or data message becomes capable ofbeing retrieved and processed by theaddressee.

25. (1) Unless the originator and addressee agreeotherwise, if information in electronic form or a datamessage is capable of being retrieved by an addressee, itis deemed to be received by the addressee—

(a) when it enters an information systemdesignated or used by the addressee for thepurpose of receiving information inelectronic form or data messages of the typesent; or

(b) upon the addressee becoming aware of theinformation in electronic form or datamessage in the addressee’s informationsystem, if the addressee has not designatedor does not use an information system forthe purpose of receiving information inelectronic form or data messages of the typesent.

(2) Subsection (1) shall apply notwithstandingthe fact that the place where the information systemsupporting an electronic address is located may bedifferent from the place where information in electronicform or the data message is deemed to be received undersection 26.

Time of sending ofdata message

Time of receipt ofdata message


26. Unless the originator and addressee agreeotherwise, a data message is deemed to be sent from theoriginator’s place of business and to be received at theaddressee’s place of business.

27. (1) Subject to subsection (2) and unless theoriginator and addressee of a data message agreeotherwise, the place of business of either party isdeemed to be—

(a) the place of business that has the closestrelationship to the underlying electronictransaction if a party has more than oneplace of business; or

(b) if there is no underlying electronictransaction, the principal place of businessof the originator or addressee of thecommunication.

(2) A location is not a place of business merelybecause that location is—

(a) where equipment and technologysupporting an information system used by aparty in connection with the formation of acontract are located; or

(b) where the information system may beaccessed by other parties.

(3) The sole fact that a party makes use of a domainname or an electronic mail address connected to aspecific country does not create a presumption that itsplace of business is located in that country.

28. If the originator or addressee of a data messagehas no place of business, then the habitual residence ofthe originator or addressee is the relevant criterion forthe place of sending and receipt of the data message.

Place of sending andreceipt of datamessage

Place of business

Habitual residence


PART IV

ELECTRONIC SIGNATURE

29. Parties to an electronic transaction may agree tothe use of a particular method or form of electronicsignature, unless otherwise provided by written law.

30. Where a written law requires the signature of aperson, that requirement is met in relation to anelectronic record or data message by the use of anelectronic signature that meets the minimum standardsof reliability and integrity or conforms with thestandard which the parties have agreed to by contract.

31. (1) The criteria that shall be used to determinethe reliability and integrity of an electronic signatureinclude whether—

(a) the authentication technology uniquelylinks the user to the signature;

(b) the signature is capable of identifying theuser;

(c) the signature is created using a means thatcan be maintained under the sole control ofthe user;

(d) the signature will be linked to theinformation to which it relates in such amanner that any subsequent change in theinformation is detectable; and

(e) such other criteria as may be prescribed byregulations.

(2) Information or a record in electronic form or adata message that is signed with an electronic signaturethat meets the reliability criteria set out insubsection (1) is deemed to be unaltered since the timeof its signing.

(3) The Electronic Authentication Productsreferred to in the Schedule are the products which canbe used to validate an electronic signature undersubsection (1).

(4) The Minister may by order amend theSchedule.

Electronic signature

Minimum standardsfor legally requiredsignatures

Reliability andintegrity ofelectronic signatures


32. An electronic signature that is associated with anelectronic authentication product issued by anElectronic Authentication Service Provider accreditedunder Part V (hereinafter referred to as a “qualifiedelectronic authentication product”), is deemed to satisfythe requirements set out in section 31 for reliability andintegrity.

PART V

ELECTRONIC AUTHENTICATION SERVICE PROVIDERS

33. (1) No person shall issue a qualified electronicauthentication product to the public unless he isregistered as an accredited Electronic AuthenticationService Provider by an authority as designated by theMinister by Order (hereinafter referred to as “thedesignated authority”) and has provided the informationprescribed under this Act.

(2) A person who contravenes subsection (1)commits an offence.

(3) An Order under subsection (1) shallprescribe—

(a) the powers and functions of the designatedauthority; and

(b) any other matter relating to the designatedauthority which the Minister deemsnecessary for the purposes of this Part.

34. (1) A person wishing to be registered as anaccredited Electronic Authentication Service Provider(hereinafter referred to as the “the applicant”) shallapply to the designated authority in the mannerprescribed and pay the prescribed fee.

(2) The application under subsection (1) shallinclude at a minimum the following information:

(a) the name and business address of theperson; and

(b) proof of accreditation of its operations.

Electronic signatureassociated with anaccredited electronicauthenticationproduct

Registration ofElectronicAuthenticationService Provider

Application forregistration


(3) Where an applicant has valid prior accredi-tation from another recognised jurisdiction, proof ofaccreditation shall be information relating to—

(a) the name and address of the accreditationauthority;

(b) the period of validity of the accreditation;and

(c) any other information required by regulationsas may be prescribed.

(4) Where an applicant has no valid prioraccreditation, he shall indicate same to the designatedauthority who shall require the applicant to submit toan audit of his operations and systems to ensurecompliance with the requirements of section 35 and anyother standards which the Minister may prescribe byregulations.

(5) Where the designated authority is satisfiedthat the applicant has met the requirements of this Actthe designated authority may issue a notice ofaccreditation to the applicant.

(6) The Minister may make Regulations specify-ing the procedures for registration and accreditation.

35. An Electronic Authentication Service Providerthat issues qualified electronic authentication productsto the public shall conduct his or its operations in areliable manner and shall—

(a) employ personnel who possess the expertknowledge and experience required forthese operations, especially with regard tomanagement, technology, electronicauthentication and security procedures;

(b) apply such administrative and managementroutines that conform to recognizedstandards;

Requirements for anElectronicAuthenticationService Providerthat issues qualifiedelectronicauthenticationproducts


(c) use trustworthy systems and products thatare protected against modification and thatensure technical and cryptographicsecurity;

(d) maintain sufficient financial resources toconduct his or its operations in accordancewith these requirements and any otherprovisions set forth in the Act and bear therisk of liability for damages;

(e) have secure routines to verify the identity ofthose signatories to whom qualifiedelectronic authentication products areissued;

(f) maintain a prompt and secure system forregistration and immediate revocation of aqualified electronic authentication product;

(g) take measures against forgery of a qualifiedelectronic authentication product and,where applicable, guarantee fullconfidentiality during the process ofgenerating signature creation data;

(h) comply with section 56; and

(i) comply with any other requirementsestablished by the Minister by Order.

36. (1) Where the designated authority is satisfiedthat an applicant has valid prior accreditation and hasmet the requirements of section 34, the designatedauthority may grant the registration.

(2) Where the designated authority is satisfiedthat an applicant who has no valid prior accreditationhas met the requirements of sections 34 and 35, thedesignated authority may issue a notice of accreditationto that applicant, and grant the registration.

Grant of registration


37. The Minister may by Order recognize a qualifiedelectronic authentication product or classes of qualifiedelectronic authentication products issued by ElectronicAuthentication Service Providers or classes ofElectronic Authentication Service Providers establishedin any other jurisdiction, as qualified electronicauthentication products in Trinidad and Tobago.

38. The designated authority shall maintain a publicregistry of accredited Electronic Authentication ServiceProviders that includes the information required by theMinister by Order.

39. A registered Electronic Authentication ServiceProvider that issues qualified electronic authenticationproducts shall annually provide the designated authoritywith an updated notification of compliance with therequirements of section 35 and pay the prescribed fee.

40. (1) The designated authority may conduct anaudit to verify that the Electronic AuthenticationService Provider has been or remains in compliancewith the requirements of this Act.

(2) In the performance of an audit, the designatedauthority may employ whatever experts it considersmay be required.

41. An Electronic Authentication Service Providershall co-operate with and offer all reasonable assistanceto the designated authority while conducting an auditand shall make available information necessary tosatisfy the designated authority regarding compliancewith the requirements of this Act.

42. Notwithstanding any law to the contrary, no per-son who performs or has performed duties or functionsin the administration or enforcement of this Act, includ-ing performing an audit pursuant to section 40, shall

Recognition of thequalified externalElectronicAuthenticationproducts

Registry ofElectronicAuthenticationService Providers

Updated notificationof compliance

Audit by theMinister

Responsibility toco-operate with anaudit

Confidentiality


communicate or allow to be communicated informationobtained in the course of performance of duties orfunctions under the Act to any other person except—

(a) to law enforcement authorities of theRepublic of Trinidad and Tobago on thebasis of a warrant; or

(b) by Order of the Court.

43. Where the designated authority is satisfied thatan Electronic Authentication Service Provider no longermeets the requirements to issue qualified electronicauthentication products, he may—

(a) cancel the accreditation of the ElectronicAuthentication Service Provider;

(b) order the Electronic Authentication ServiceProvider to cease any or all of its activities,including the provision of qualifiedelectronic authentication products;

(c) order the Electronic Authentication ServiceProvider to be removed from the registry;

(d) take any action that he deems reasonable toensure that the Electronic AuthenticationService Provider is in compliance with therequirements set out in section 35; or

(e) make any other order that the designatedauthority deems reasonable in thecircumstances including, but not limited toreimbursement of fees and charges to usersof the services of the ElectronicAuthentication Service Provider or publicnotification of cessation of business.

44. An Electronic Authentication Service Providermay, at the request of a particular signatory, indicate inthe relevant electronic authentication product apseudonym instead of the signatory’s name.

Power of thedesignated authorityto deal with failureto meetrequirements

Pseudonyms


45. An Electronic Authentication Service Providershall ensure the operation of a prompt and securedirectory of holders of electronic authenticationproducts and secure an immediate revocation servicethat makes it possible to ascertain—

(a) whether a qualified electronic authenticationproduct was revoked;

(b) the validity period of the qualified electronicauthentication product; or

(c) whether the qualified electronic authentica-tion product contains any limitations on thescope or value of the electronic transactionsfor which the signature can be used.

46. (1) An Electronic Authentication Service Providershall revoke an electronic authentication productimmediately upon the receipt of a request to do so bythe signatory or if otherwise warranted in thecircumstances.

(2) An Electronic Authentication Service Providershall ensure that the date and time when an electronicauthentication product is revoked can be determinedprecisely.

47. (1) An Electronic Authentication Service Providerissuing a qualified electronic authentication product tothe public is prima facie liable for any damages or losscaused to anyone relying on the qualified electronicauthentication product due to—

(a) the Electronic Authentication Service Providernot continuing to meet the requirements setforth in section 31 or 35 at the time of theissuance of the qualified electronicauthentication product; or

(b) the qualified electronic authenticationproduct, when issued, having containedincorrect information.

Additionalresponsibilities of anElectronicAuthenticationService Provider

Immediaterevocation uponrequest

Liability ofElectronicAuthenticationService Providerissuing a qualifiedelectronicauthenticationproduct


(2) This section also applies to an ElectronicAuthentication Service Provider who guarantees thatthe electronic authentication product of another serviceprovider is qualified.

48. (1) An Electronic Authentication Service Providerissuing a qualified electronic authentication productmay be exempted from liability if the provider can showthat the injury or loss was not caused by its ownnegligence.

(2) The Electronic Authentication ServiceProvider is also not liable for damages for an injury orloss arising from the use of a qualified electronicauthentication product in violation of any limitations ofuse or scope of transaction clearly stated in the qualifiedelectronic authentication product.

(3) This section also applies to an ElectronicAuthentication Service Provider who guarantees thatthe electronic authentication product of another serviceprovider is qualified.

49. The designated authority may require anElectronic Authentication Service Provider to pay thecosts reasonably incurred in the performance of an auditpursuant to section 40.

PART VI

INTERMEDIARIES AND TELECOMMUNICATIONS SERVICEPROVIDERS

50. (1) An intermediary or telecommunications serv-ice provider who merely provides a conduit for thetransmission of data messages, records or informationin electronic form shall not be liable for the content ofdata messages, records or information in electronic formif the intermediary or telecommunications serviceprovider has no actual knowledge or is not aware offacts that would to a reasonable person, indicate alikelihood of criminal liability or liability for a tort inrespect of material on the network of an intermediary or

Release fromliability

Costs of audit

Liability ofintermediaries andtelecommunicationsservice providers


telecommunications service provider or who, uponacquiring actual knowledge or becoming aware of suchfacts, follows the procedures required by section 51.

(2) Nothing in this section relieves an intermedi-ary or telecommunications service provider from com-plying with any court order, injunction, writ, regulatoryrequirement or contractual obligation in respect of datamessages, records or information in electronic form.

(3) An intermediary or telecommunications serv-ice provider shall not be required to monitor any datamessage processed by means of its system in order toascertain whether its processing would, apart from thissection, constitute or give rise to an offence or give riseto civil liability.

(4) An intermediary or a telecommunicationsservice provider, during an audit, shall not be liableunder the Copyright Act in respect of—

(a) the infringement of copyright in any work orother subject matter in which copyrightsubsist; or

(b) the unauthorized use of any publicperformance, the duration of which thecopyright period has not expired.

(5) For the purposes of this section, “publicperformance” has the same meaning as in theCopyright Act.

51. (1) If an intermediary or telecommunicationsservice provider has actual knowledge that theinformation in a data message or an electronic recordgives rise to civil or criminal liability then, as soon as ispracticable after acquiring such knowledge, theintermediary or telecommunications service providershall—

(a) remove and secure the information fromany information system within the control

Procedure fordealing withunlawful,defamatory, etc.,information

Chap. 82:50


of the intermediary or telecommunicationsservice provider and cease to provide oroffer to provide services in respect of thatinformation or take any other actionauthorized by written law or in accordancewith the established code of conduct; and

(b) in the case of criminal liability, notify theappropriate law enforcement authority ofthe relevant facts and of the identity of theperson for whom the intermediary ortelecommunications service provider wassupplying services in respect of theinformation, if the identity of thatperson is known to the intermediary o rtelecommunications service provider.

(2) An intermediary or telecommunications serviceprovider is not liable, whether in contract, tort, understatute or otherwise, to any person, including any person onwhose behalf the intermediary or telecommunicationsservice provider provides services, in respect ofinformation in a data message or an electronic record,for any action the intermediary or telecommunicationsservice provider takes, in good faith, in exercise of thepowers conferred by, this section.

(3) Any person who lodges a notification ofunlawful activity with an intermediary ortelecommunications service provider, knowing that itmaterially misrepresents the facts, commits an offenceand is liable for damages for wrongful removal of theinformation in a data message or electronic recordunder subsection(1).

52. (1) The Minister may develop codes of conduct andstandards for intermediaries and telecommunicationsservice providers for the purposes of this Act.

(2) Where the Minister has developed a code ofconduct or service standards for intermediaries and

Codes of conduct andservice standards forintermediaries andtelecommunicationsservice providers


telecommunications service providers, the intermediariesand telecommunications service providers shall complywith the code of conduct or service standards.

(3) Compliance with relevant codes of conductand service standards may be taken into account by thecourts in determining liability.

PART VII

GOVERNMENT AND OTHER PUBLIC BODIES

53. (1) A public body that, pursuant to any writtenlaw—

(a) accepts the filing of documents, or obtainsinformation in any form;

(b) requires that documents be created orretained;

(c) requires documents, records or informationto be provided or retained in their originalform; or

(d) issues any permit, licence or approval,

may, notwithstanding anything to the contrary in suchwritten law, carry out those functions by electronicmeans.

(2) Where a public body decides to perform any ofthe functions in subsection (1) by electronic means, thepublic body may specify—

(a) the manner and format in which suchdocuments, records or information inelectronic form shall be filed, created,retained, issued or provided;

(b) the manner and format in which suchsignature shall be affixed to the documents,record or information in electronic form,

Generalauthorization


and the identity of or criteria that shall bemet by any Electronic AuthenticationService Provider used by the person filingthe document;

(c) such control processes and procedures as maybe appropriate to ensure adequate integrity,security and confidentiality of documents,record or information in electronic form; or

(d) any other required attributes for documents,record or information in electronic form thatare currently specified for correspondingpaper documents.

(3) Where a document, record or information inelectronic form under subsection (2) is required to besigned, the Minister may by Regulations specify thetype of signature required, including, where applicable,the requirement that the sender use a particular type ofencrypted electronic signature.

(4) For the avoidance of doubt, notwithstandinganything to the contrary in any written law but subjectto any specification made under subsection (2), whereany person is required by any written law to—

(a) file any document with or provideinformation in any form to a public body;

(b) create or retain any document for a publicbody;

(c) use a prescribed form for an application ornotification to, or other transaction with, apublic body;

(d) provide to or retain for a public body anydocument, record or information in itsoriginal form; or

(e) hold a licence, permit or other approvalfrom a public body,


such a requirement is satisfied by a document, record orinformation in electronic form specified by the publicbody for that purpose.

54. Where documents, records or information arerequired by any written law to be made available forinspection, that requirement is met by making suchdocuments, records or information available forinspection in electronic form.

PART VIII

CONSUMER PROTECTION

55. (1) A person using electronic means to sell goodsor services to consumers shall provide accurate, clearand accessible information about themselves, sufficientto allow—

(a) the legal name of the person, its principalgeographic address, and an electronicmeans of contact or telephone number;

(b) prompt, easy and effective consumercommunication with the seller; and

(c) service of legal process.

(2) A person using electronic means to sell goodsor services to consumers shall provide accurate andaccessible information describing the goods or servicesoffered, sufficient to enable consumers to make aninformed decision about the proposed transaction andto maintain an adequate record of the information.

(3) A person using electronic means to sell goodsor services to consumers shall, before the conclusion ofthe electronic contract based on such transaction,provide the following information to consumers inrespect of such electronic contract:

(a) the terms, conditions and methods ofpayment;

Documents forinspection

Minimuminformation ine-commerce


(b) the details of, and conditions and policiesrelated to, privacy, withdrawal, termination,return, exchange, cancellation and refunds;

(c) the arrangements for delivery orperformance; and

(d) a copy of the contract for the consumer in aformat that can be retained.

56. Before entering into an electronic contractrequiring the issuance of a qualified electronicauthentication product, an Electronic AuthenticationService Provider shall inform the party seeking theelectronic authentication product in writing of thefollowing:

(a) the terms and conditions concerning the useof the electronic authentication product,including any limitations on its scope oramounts;

(b) any requirements concerning storageand protection of the signature-creationdata by the signatory;

(c) the cost of obtaining and using the electronicauthentication product and of using the otherservices of the Electronic AuthenticationService Provider;

(d) whether the Electronic AuthenticationService Provider is accredited; and

(e) procedures for settlement of complaints.

57. A consumer who is not provided with theinformation required by sections 55 and 56 has the rightto rescind the contract within thirty calendar daysprovided that the consumer has not received anymaterial benefit from the transaction.

Minimuminformationregardingauthenticationproducts

Right of rescission


58. (1) Any person who sends unsolicited commercialcommunications through electronic media to consumersin Trinidad and Tobago or knowingly uses an intermediaryor a telecommunications service provider in Trinidadand Tobago to send, or who has a place of business inTrinidad and Tobago and sends unsolicited electroniccorrespondence to consumers, shall provide theconsumer with a clearly specified and easily activatedoption to opt out of receiving future communications.

(2) A person who contravenes subsection (1)commits an offence.

PART IX

CONTRAVENTION AND ENFORCEMENT

59. A person who—

(a) files information required under this Actthat contains false or misleadinginformation; or

(b) provides a consumer or a user of anelectronic authentication product with falseor misleading information,

commits an offence.

60. A person who, with respect to an audit carried outpursuant to section 40—

(a) knowingly makes any false ormisleading statement, either orally or inwriting to persons carrying out the audit; or

(b) otherwise obstructs or hinders the personscarrying out the audit in the conduct oftheir duties and functions,

commits an offence.

61. A person who breaches the confidentialityobligations established by section 42 commits anoffence.

Obstruction of anaudit

Breach of obligationsof confidentiality

False or misleadinginformation


Unwantedcommunications

62. Where a body corporate commits an offence underthis Act, any officer, director or agent of the bodycorporate who directed, authorized, assented to orparticipated in the commission of the offence is a partyto and commits an offence and is liable to the punishmentprovided for the offence.

63. (1) A person who commits an offence under thisAct for which no penalty is provided is liable upon—

(a) summary conviction to a fine of two hundredthousand dollars or to imprisonment for aterm of three years; or

(b) conviction on indictment to a fine of twohundred and fifty thousand dollars or toimprisonment for a term of five years.

(2) Where the offence under this Act is committedby a body corporate for which no penalty is provided, thebody corporate shall be liable upon—

(a) summary conviction to a fine of twohundred and fifty thousand dollars; or

(b) conviction on indictment to a fine of fivehundred thousand dollars.

(3) Where a body corporate contravenes any of theprovisions of this Act, the Court may, in addition to anypenalty it may impose for a criminal offence, impose afine not exceeding ten per cent of the annual turnover ofthe body corporate.

(4) In imposing a fine under subsection (3) theCourt shall take into account—

(a) the estimate of the economic cost of thecontravention to the consumers, users of theservices in question or any other personaffected by the contravention;

(b) the estimate of the economic benefit of thecontravention to the enterprise;

Penalties


Liability of directorsand officers

(c) the time for which the contravention is ineffect if continuing;

(d) the number and seriousness of any othercontraventions, if any, committed by theenterprise; and

(e) any other matter the Court may considerappropriate in the circumstances.

PART X

MISCELLANEOUS

64. Every director and officer of a body corporateshall take all reasonable care to ensure that the bodycorporate complies with—

(a) this Act and the regulations made underthis Act; and

(b) any orders imposed by the Minister orhis delegate.

65. The Court shall have jurisdiction to hear anddetermine—

(a) applications for any Order which the Courtconsiders appropriate to facilitate theenforcement of any provisions of this Act; or

(b) upon an application pursuant to this Act,cases involving any contravention of theprovisions of this Act,

and make such appropriate Orders in relation thereto.

66. (1) The Minister may make Regulations for thepurpose of giving effect to this Act.

(2) Notwithstanding the generality of the foregoing,the Minister may make Regulations with respect to anymatter that is required to be prescribed under this Act.

Regulations

Duties of directors

Jurisdiction of theCourt


(3) Regulations made under this section shall besubject to negative resolution of Parliament.

SCHEDULE

(Section 31)

ELECTRONIC AUTHENTICATION PRODUCTS USED TO VALIDATE

ELECTRONIC SIGNATURES

Electronic certificates

Passed in the House of Representatives this 11th dayof February, 2011.

J. SAMPSON-MEIGUELClerk of the House

Passed in the Senate this 5th day of April, 2011.

N. JAGGASSARClerk of the Senate

Senate amendments were agreed to by the House ofRespresentatives on the 18th day of April, 2011.

J. SAMPSON-MEIGUELClerk of the House


PRINTED BY THE GOVERNMENT PRINTER, PORT-OF-SPAINREPUBLIC OF TRINIDAD AND TOBAGO—2011