The Electronic Commerce Act

Introduction

The Act (Act III of 2001) lays down broad legal principles for the conduction of e-commerce in Malta and the processing of electronic transactions. The Act allows further and more specific regulation through subsidiary legislation.

Electronic communication: general rule

The Act stipulates that, with certain exceptions, transactions that have taken place (wholly or partly) by means of 1 or more electronic communications~ are deemed to be valid.

Exceptions

To date, the following transactions cannot be carried out by electronic means:-

  • wills (or other testamentary dispositions);
  • trusts;
  • powers of attorney;
  • the creation, disposal of or registration of rights over immovable property (with the exception of leases);
  • the making of an affidavit or solemn declaration;
  • any transaction connected with the law of persons;
  • the rules, practices or procedures of a court or tribunal;
  • the imposition, collection or recovery of taxation and other Government imposts (including fees, fines and penalties);
  • contracts of suretyship and collateral security furnished by persons for the purpose of their trade, business or profession; and
  • the giving of evidence in criminal proceedings.

Requirement to give information

The Act provides that any legal requirement to give information^ in writing is satisfied if the information is given electronically provided that:-

  • at the time the information was given, it was accessible so as to be usable for subsequent reference;
  • if the recipient of the information requests that the information be sent in accordance with particular information technology requirements, by means of a particular kind of electronic communication, that request has been met;
  • the recipient consents to the information being sent by means of an electronic communication; and
  • if the recipient requires that particular action/s be taken in order to verify the receipt of the information, the said action/s are carried out.

Electronic signatures

Advanced electronic signatures based on a qualified certificate and created by a secure creation device are accorded full legal validity just as any other ‘traditional’ hand-written signature whereas electronic signatures that are not ‘advanced’ or based upon ‘qualified certificates’ are nonetheless valid and not to be discriminated against due to their electronic form.

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