Electronic Communications

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A decision made (14/09/2006) regarding Approval of the Electronic Communications (Amendment) (Jersey) Law 200-.

Subject:	Approval of the Electronic Communications (Amendment) (Jersey) Law 200-
Decision Reference:	MD-E-2006-0152		Exempt clause(s):	N/a
Type of Report: (oral or written)	Written		Person Giving Report (if oral):	N/a
Telephone or e-mail Meeting?	N/a		Report File ref:	N/a
Written report – Title	Electronic Communications (Amendment) (Jersey) Law 200–
Written report – Author (name and job title)	Paul de Gruchy, Director, Finance Industry Development
Decision(s): To approve the Electronic Communications (Amendment) Law 200- and request that it be lodged for debate by the States at the earliest opportunity.
Reason(s) for decision: The current Law is in many respects over-complex and does not encourage the use of electronic communication. The amendment will simplify and widen the application of the Law dramatically, with significant benefits to all of those affected by the Law.
Action required: PDG to request the Publications Editor and the Assistant Greffier of the States to lodge the Amendment au greffe for debate at the earliest opportunity.
Signature: (Minister/ Assistant Minister)		Date of Decision: 14 September 2006

Electronic Communications - Amendment.

ITEM NO______

MINISTER FOR ECONOMIC DEVELOPMENT

ELECTRONIC COMMUNICATIONS (AMENDMENT)

(JERSEY) LAW 200- (the “AMENDMENT”)

1 THE ISSUE

1.1 The Electronic Communications (Jersey) Law (the Law) was introduced in 2000 with a view to encouraging the increased use of electronic communication in place of written communication. It has failed to do so, for reasons explained in section 2 of this paper. The aim of the Amendment is to address the deficiencies presently in the Law.

1.2 It is recommended that the Amendment be approved and lodged for debate by the States at the earliest opportunity, so that the Law may better achieve its original aims.

2 BACKGROUND

2.1 Many of the Island’s statutes require that information be provided from one party to another. Such legislation often provides that information must be “in writing”, and so, absent any other legislation, the information cannot be sent electronically, even with the consent of both sender and recipient. One of the aims of the Law was to facilitate the provision of such information through electronic means by confirming that, where certain conditions are satisfied, information required to be provided in writing may be provided electronically.

2.2 Often, one of the parties to which information must be provided will be a “States entity” (as defined in the Law). Such parties include departments of the States, but also any body established by statute: for example, the Jersey Financial Services Committee or the Jersey Competition Regulatory Authority. On other occasions, both parties may be non-States entities: for example, in relation to the information that has to be provided by a company to a member under the Companies Law or between secured party and lender under the Security Interests Law.

2.3 The Law introduced a presumption that information required to be provided under a statute may be provided electronically, provided that private persons consent to that method of communication, or, where one party was a “States entity”, if the information met certain IT requirements as stipulated by the States entity.

2.4 Unfortunately, at the time the Law came into force, a number of States entities realised that they were not currently capable of accepting documents electronically. So an Order was passed which effectively reversed the Law, providing that information can only be passed electronically if it was provided under a statute specified by a further order. As a result, private persons cannot send information between themselves electronically, even when they consent to do so. This is far from ideal.

2.5 There have recently been two orders made which expand the scope of the Law so as to provide that information to be provided to the Commission and to the Comptroller of Income Tax can be sent electronically. However, it is cumbersome to require each statute under which information can be provided electronically to be specified by Order.

2.6 In addition, doubts have been raised as to whether it is appropriate (or indeed vires) to use an Order to effectively reverse the provision of a primary Law. It is certainly a cumbersome way of dealing with an area that the Law was intended to simplify.

2.7 It is proposed that the Law be amended very simply to provide that any communication required to be made under a statute may be made electronically to a States entity provided that the entity consents and the information meets the entities IT requirements. The Order which reversed the original presumption of the Law would then be repealed. The overall effect would be that, instead of a States entity requiring an Order to be made setting out under which statutes it would be acceptable to accept the electronic provision of documents, the department could simply consent to doing so, provided the document met formal IT requirements.

2.8 Such an approach would save a lot of administrative work and reduce the risk of a States entity being found to have acted in a manner that was ultra vires or simply illegal. Even more importantly, it would allow people and businesses in Jersey to maximise the use of electronic communications between them, provided each party consented to do so. It would also have the ancillary benefit of tidying up a law which has unnecessarily become highly complex.

2.9 The proposals have not been the subject of consultation. However, the effect of the proposals will be wholly positive and in no way onerous: they will not compel anyone to use electronic communications, but will simply make it easier for persons (including States entities) to send and accept information electronically, should they consent to doing so.

2.10 It should be noted that it will still be open for the Minister to prescribe by Order specified statutes or circumstances under which information may not be provided electronically.

3 RECOMMENDATION

3.1 It is recommended that the Amendment be approved and lodged au greffe for debate by the States at the earliest opportunity.

PAUL DE GRUCHY

Director, Finance Industry Development

ANNEX

Electronic Communications (Amendment) (Jersey) Law (200-)