RESOURCES

Doing Business in a Modern Society

Jamaica has long had as its goal becoming a commercial leader on par with the most developed nations
of the world. In the globalized modern landscape, a big part of fulfilling this goal is participation in the
“digital economy”. With that in mind, the government of Jamaica passed the Electronic Transactions Act
(“ETA”).
The ETA was passed by parliament with the objects of the ETA being to:

  1. Facilitate electronic transactions by means of reliable electronic documents;
  2. Promote the development of the legal and business infrastructure necessary to implement
    secure electronic commerce;
  3. Eliminate barriers to electronic commerce resulting from uncertainties over writing and
    signature requirements;
  4. Promote public confidence in the integrity and reliability of electronic documents and
    electronic transactions, in particular through the use of encrypted signatures to ensure the
    authenticity and integrity of electronic documents;
  5. Establish uniformity of legal rules and standards regarding the authentication and integrity of
    electronic documents; and
  6. Facilitate the electronic filing of information with Government agencies and statutory bodies
    and to promote the efficient delivery of Government services by means of reliable electronic
    documents.
    The provisions of the ETA provide that they do not apply to:
  7. The making, execution, alteration or revocation of a Will or other testamentary instrument.
  8. The conveyance or transfer of real property or any interest in real property.
  9. The creation, variation, performance or enforcement of any-
    (a) trust; or
    (b) power of attorney.
  10. Any procedure governed by the Civil Procedures Rules, 2002, or by rules of court made pursuant
    to any law.
    Although the ETA was passed as far back as 2007, I wonder if it has yet achieved the desired impact on
    the day-to-day operation of commerce in Jamaica.

    Section 7 of the ETA states that:
    (1) Where any law requires, or refers to, the giving of information in writing, information that is
    given electronically shall be taken to be given in writing if-
    (a) when the information was given, it was reasonable to expect that the information would
    be readily accessible to, and capable of retention for subsequent reference by, the
    addressee;
    (b) where the information is to be given to the Government and the Government requires-
    i. that the information be given in a particular way in accordance with particular
    technology requirements; or
    ii. that particular action be taken to verify the receipt of the information, the
    Government’s requirement has been met; and

(c) where the information is to be given to a person other than the Government, that person
consents to the information being given electronically.I still

Section 7 applies to any requirement or permission “to give information”, provided for under Jamaican
law that is not expressly excluded by the provisions of the ETA.
”the giving of information” includes-
(a) making an application;
(b) making or lodging a claim;
(c) serving a notice;
(d) lodging a return;
(e) malting a request;
(f) making a declaration;
(g) lodging or issuing a certificate;
(h) lodging an objection;
(i) giving a statement of reasons.

Additionally, where a law requires more than one copy of the information to be submitted to a person,
the ETA provides that the requirement will be taken to have been satisfied by giving the information to
the person electronically in accordance with the provisions of the ETA. This could save businesses on
paper costs and have a substantial impact on waste produced by commercial entities.

Lodging a return could include filing annual returns with the Companies Office of Jamaica, filing a tax
return with the Tax Administration of Jamaica or a filing made under any applicable law which calls for
the delivery of a return. With all of the above in mind, section 7 of the ETA seems to be quite useful.
After the ETA came into force, any law requiring a person’s signature in relation to any information shall
be taken to have been met where the information is given electronically, a method is used to identify the
person and to show the person’s approval of the information given and having regard to all the relevant
circumstances when that method was used, including any relevant agreement, the method was as
reliable as was appropriate for the purposes for which the information was communicated.

It should also be noted that, if the signature is to be given to the Government, the Government requires
that the method used be in accordance with particular information technology requirements. The
Government’s requirements being met is a precondition for the acceptability of the chosen method.
Unfortunately, as of the date of writing this article, I have not seen any document issued by the
Government of Jamaica, that is available to the general public, to indicate its standard information
technology requirements for electronically signed documents. The lack of such a document in my view
may explain, at least in part, the reason for the slow adoption of electronic signatures as the modus
operandi for most agencies in Jamaica.

Section 9 of the ETA goes on to state that where any law requires a document or signature to be made,
attested, acknowledged, authenticated, notarized or verified, or to be made under oath, by any person,
that requirement is met if the following are attached to or logically associated with the document-
(a) the encrypted signature of that person;
(b) in the case of a signature or a document requiring a signature, a statement by that person,
attesting to his identity;
(c) a statement by that person certifying the performance of all obligations imposed by any other
law governing the legal validity of the document; and
(d) all other information required to be included under any other law.

Nowadays it is customary for notaries in the United States of America, Canada and other jurisdictions to
notarize or certify documents electronically using software specifically provided for that purpose. Sadly,
this practice has not yet been readily accepted by businesses and agencies in Jamaica.

Another crucial step that many in the commercial arena await with bated breath to facilitate electronic
commerce and the ease of doing business is the implementation of procedure for the assessment and
stamping of electronic documents. Until then I hope this article has reminded you of the power and
utility of electronic transactions as we all navigate the digital economy.

Luke Phillips is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial
Department. Luke may be contacted via Luke.Phillips@mfg.com.jm or www.myersfletcher.com . This
article is for general information purposes only and does not constitute legal advice.

This article is for general information purposes only and does not constitute legal advice.

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