Part II

Facilitation of electronic commerce, data storage, etc.

Power to modify legislation.
8
1
Subject to subsection (3), the appropriate Minister may by order made by statutory instrument modify the provisions of—
a
any enactment or subordinate legislation, or
b
any scheme, licence, authorisation or approval issued, granted or given by or under any enactment or subordinate legislation,
in such manner as he may think fit for the purpose of authorising or facilitating the use of electronic communications or electronic storage (instead of other forms of communication or storage) for any purpose mentioned in subsection (2).
2
Those purposes are—
a
the doing of anything which under any such provisions is required to be or may be done or evidenced in writing or otherwise using a document, notice or instrument;
b
the doing of anything which under any such provisions is required to be or may be done by post or other specified means of delivery;
c
the doing of anything which under any such provisions is required to be or may be authorised by a person’s signature or seal, or is required to be delivered as a deed or witnessed;
d
the making of any statement or declaration which under any such provisions is required to be made under oath or to be contained in a statutory declaration;
e
the keeping, maintenance or preservation, for the purposes or in pursuance of any such provisions, of any account, record, notice, instrument or other document;
f
the provision, production or publication under any such provisions of any information or other matter;
g
the making of any payment that is required to be or may be made under any such provisions.
3
The appropriate Minister shall not make an order under this section authorising the use of electronic communications or electronic storage for any purpose, unless he considers that the authorisation is such that the extent (if any) to which records of things done for that purpose will be available will be no less satisfactory in cases where use is made of electronic communications or electronic storage than in other cases.
4
Without prejudice to the generality of subsection (1), the power to make an order under this section shall include power to make an order containing any of the following provisions—
a
provision as to the electronic form to be taken by any electronic communications or electronic storage the use of which is authorised by an order under this section;
b
provision imposing conditions subject to which the use of electronic communications or electronic storage is so authorised;
c
provision, in relation to cases in which any such conditions are not satisfied, for treating anything for the purposes of which the use of such communications or storage is so authorised as not having been done;
d
provision, in connection with anything so authorised, for a person to be able to refuse to accept receipt of something in electronic form except in such circumstances as may be specified in or determined under the order;
e
provision, in connection with any use of electronic communications so authorised, for intermediaries to be used, or to be capable of being used, for the transmission of any data or for establishing the authenticity or integrity of any data;
f
provision, in connection with any use of electronic storage so authorised, for persons satisfying such conditions as may be specified in or determined under the regulations to carry out functions in relation to the storage;
g
provision, in relation to cases in which the use of electronic communications or electronic storage is so authorised, for the determination of any of the matters mentioned in subsection (5), or as to the manner in which they may be proved in legal proceedings;
h
provision, in relation to cases in which fees or charges are or may be imposed in connection with anything for the purposes of which the use of electronic communications or electronic storage is so authorised, for different fees or charges to apply where use is made of such communications or storage;
i
provision, in relation to any criminal or other liabilities that may arise (in respect of the making of false or misleading statements or otherwise) in connection with anything for the purposes of which the use of electronic communications or electronic storage is so authorised, for corresponding liabilities to arise in corresponding circumstances where use is made of such communications or storage;
j
provision requiring persons to prepare and keep records in connection with any use of electronic communications or electronic storage which is so authorised;
k
provision requiring the production of the contents of any records kept in accordance with an order under this section;
l
provision for a requirement imposed by virtue of paragraph (j) or (k) to be enforceable at the suit or instance of such person as may be specified in or determined in accordance with the order;
m
any such provision, in relation to electronic communications or electronic storage the use of which is authorised otherwise than by an order under this section, as corresponds to any provision falling within any of the preceding paragraphs that may be made where it is such an order that authorises the use of the communications or storage.
5
The matters referred to in subsection (4)(g) are—
a
whether a thing has been done using an electronic communication or electronic storage;
b
the time at which, or date on which, a thing done using any such communication or storage was done;
c
the place where a thing done using such communication or storage was done;
d
the person by whom such a thing was done; and
e
the contents, authenticity or integrity of any electronic data.
6
An order under this section—
a
shall not (subject to paragraph (b)) require the use of electronic communications or electronic storage for any purpose; but
b
may make provision that a period of notice specified in the order must expire before effect is given to a variation or withdrawal of an election or other decision which—
i
has been made for the purposes of such an order; and
ii
is an election or decision to make use of electronic communications or electronic storage.
7
The matters in relation to which provision may be made by an order under this section do not include any matter under the care and management of the Commissioners of Inland Revenue or any matter under the care and management of the Commissioners of Customs and Excise.
8
In this section references to doing anything under the provisions of any enactment include references to doing it under the provisions of any subordinate legislation the power to make which is conferred by that enactment.
S. 8(4)-(6)(8) applied (S.) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp. 7), ss. 82(5), 89; S.S.I. 2003/288, art. 2, Sch.
S. 8(7) excluded (26.2.2003 for certain purposes, 1.4.2003 for certain further purposes and 7.4.2003 for certain further purposes) by 2002 c. 21, ss. 54(10), 61; S.I. 2003/392, art. 2 (subject to art. 3)
S. 8(4)(5) modified by 1992 c. 5, s. 189(5B) (as inserted (25.2.2013) by Welfare Reform Act 2012 (c. 5), ss. 104(1), 150(3); S.I. 2013/358, art. 2(2), Sch. 2 para. 38; S.I. 2013/358, art. 2(2), Sch. 2 para. 38)
S. 8(4)(5) modified by 1998 c. 14, s. 79(6B) (as inserted (25.2.2013) by Welfare Reform Act 2012 (c. 5), ss. 104(2), 150(3); S.I. 2013/358, art. 2(2), Sch. 2 para. 38; S.I. 2013/358, art. 2(2), Sch. 2 para. 38)