Anyone who has read, heard or seen the news lately would be aware that Australians are increasingly turning to the internet to conduct their purchases and communications. Shopping, paying bills or even submitting a tax return online can be convenient, quick and easy. Needless to say, many of us who are conducting our interactions online will be doing so with a large amount of good faith, and as a consequence we need safeguards on the type of information which is required to create a legally valid document and guidance can be found via the Electronic Transactions Act (Cth) (the ETA), and additionally, the Commonwealth Act has also been replicated at the State level as well. The ETA sets out the requirements in regards to writing, signatures, production of documents, retention, time and place of dispatch, receipt and attribution of electronic communications.
Requirement to give information in writing
Under the s 9 provisions of the ETA (Cth) the general requirements for giving information in writing are as follows:
• the requirement for a person to give information in writing will be taken as met via an electronic communication (s 9(1));
• there is a reasonable expectation that the information given would be readily accessible and to be useable for subsequent reference (s 9(1)(a));
• if information is required to be given electronically, a person must comply with the information technology requirements, which can mean the software to be used, or the electronic communication to be used (s 9(1)(b));
• if information is required to be given and a particular action be taken by way of a verifying receipt, the requirement will deemed to have been met (s 9(1)(c)).
Requirement for signatures
An electronic signature via an electronic communication is essential because it authenticates the identity of the person, while also signifying their intent to be associated with the record as outlined in s 10 of the ETA (Cth). Additionally, s 10 also allows for a person who may be using an electronic signature as a replacement for a manual signature. However, it should be noted, that this relates to only the approval of information on record, rather than the integrity of the information.
Requirement to produce a document
Under the provisions of s 11(1) of the ETA (Cth) if there is a requirement for a person to produce a document on hard copy such as a paper, then the requirement to produce a document will be taken to be as met if the electronic communication satisfies the requirements of the section. The overarching aspect of the condition to produce a document, is that the integrity of the message must be maintained (s 11(1)(a)) and that the information must be readily accessible when needed for reference (s 11(1)(b)).
Requirement for retention of electronic communications
When there is a requirement for the retention of electronic communication under s 12 of the ETA (Cth), the obligation will be considered to be as met if:
• the document is available for retention;
• a paper document is to be retained if possible (s 12(2));
• information regarding the origin, destination, date, and time of the electronic communication is to be retained (s 12(4)(c)).
Time of dispatch, receipt and place of electronic communication
Provisions regarding the time of dispatch, time of receipt, place of dispatch and place of receipt, can be found under Division 3 of the ETA (Cth), and provides for the general rules regarding when and where an electronic communication is sent, and where the communication was received.
Attribution of electronic communication
One area of electronic communication which may cause concern is the question of whether or not the person who sent the communication, is the purported individual. Therefore, under the provisions of s 15(1) of the ETA (Cth), a person who asserts that they are the originator of an electronic communication may only be bound by the conditions of the communication if it was sent by the actual person, or with the appropriate authority to make such a representation.
This is just a general article in regards to the creation of a legally valid online document. If you need assistance in the creation of a valid commercial online agreement, please seek the help of a lawyer who will be able to assist.