Formation and validity
11. —(1) For the avoidance of doubt, it is declared that in the context of the formation of contracts, unless otherwise agreed by the parties, an offer and the acceptance of an offer may he expressed by means of electronic records.
(2) Where an electronic record is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that an electronic record was used for that purpose.
Effectiveness between parties
12. As between the originator and the addressee of an electronic record, a declaration of intent or --other statement shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record.
Attribution
13. —(1) An electronic record is that of the originator if it was sent by the originator himself.
(2) As between the originator and the addressee, an electronic record is deemed to be that of the
originator if it was sent
(a) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or
(b) by an information system programmed by or on behalf of the originator to operate automatically
(3) As between the originator and the addressee, an addressee is entitled to regard an electronic record as being that of the originator and to act on that assumption if:
(a) in order to ascertain whether the electronic record was that of the originator, the addressee properly applied a procedure previously agreed to by the originator for that purpose; or
(b) the data message as received by the addressee resulted from the actions of a person whose relationship with the originator or with any agent of the originator enabled that person to gain access to a method used by the originator to identify electronic records as its own.
(4) Subsection (3) shall not apply
(a) from the time when the addressee has both received notice from the originator that the electronic record is not that of the originator, and had reasonable time to act accordingly;
(b) in a case within subsection (3)(b), at any time when the addressee knew or ought to have known, had it exercised reasonable care or used any agreed procedure, that the electronic record was not that of the originator; or
(c) ifl in all the circumstances of the case, it is unconscionable for the addressee to regard the electronic record as that of the originator or to act on that assumption.
(5) Where an electronic record is that of the originator or is deemed to be that of the originator, or the addressee is entitled to act on that assumption, then, as between the originator and the addressee, the addressee is entitled to regard the electronic record received as being what the originator intended to send, and to act on that assumption.
(6) The addressee is not so entitled when the addressee knew or should have known, had the addressee exercised reasonable care or used any agreed procedure, that the transmission resulted in any error in the electronic record as received.
(7) The addressee is entitled to regard each electronic record received as a separate electronic record and to act on that assumption, except to the extent that the addressee duplicates another electronic record and the addressee knew or should have known, had the addressee exercised reasonable care or used any agreed procedure, that the electronic record was a duplicate.
(8) Nothing in this section shall affect the law of agency or the law on the formation of contracts. Commentary.
PART V : SECURE ELECTRONIC RECORDS AND SIGNATUIUrS
Secure electronic record
16. —(1) If a prescribed security procedure or a commercially reasonable security procedure agreed to by the parties involved has been properly applied to an electronic record to verify that the electronic record has not been altered since a specified point in time, such record shall be treated as a secure electronic record from such specified point in time to the time of verification.
(2) For the purposes of this section and section 17, whether a security procedure is commercially reasonable shall be determined having regard to the purposes of the procedure and the commercial circumstances at the time the procedure was used, including —
(a) the nature of the transaction;
(b) the sophistication of the parties;
(c) the volume of similar transactions engaged in by either or all parties;
(d) the availability of alternatives offered to but rejected by any party;
(e) the cost of alternative procedures; and
(f) the procedures in general use for similar types of transactions.
Secure electronic signature
17. It through the application of a prescribed security procedure or a commercially reasonable security procedure agreed to by the parties involved, it can be verified that an electronic signature was, at the time it was made
(a) unique to the person using it;
(b) capable of identifying such person;
(c) created in a manner or using a means under the sole control of the person using it; and
(d) linked to the electronic record to which it relates in a manner such that if the record was
changed the electronic signature would be invalidated.
Presumptions relating to secure electronic records and signatures
18. —(1) In any proceedings involving a secure electronic record. it shall be presumed, unless evidence to the contrary is adduced, that the secure electronic record has not been altered since the specific point in time to which the secure status relates.
(2) In any proceedings involving a secure electronic signature, it shall be presumed, unless evidence to the contrary is adduced, that
(a) the secure electronic signature is the signature of the person to whom it correlates; and
(b) the secure electronic signature was affixed by that person with the intention of signing or approving the electronic record.
(3) In the absence of a secure electronic record or a secure electronic signature, nothing in this Pan shall create any presumption relating to the authenticity and integrity of the electronic record or an electronic signature.
(4) For the purposes of this section
“secure electronic record” means an electronic record treated as a secure electronic record by virtue of section 16 or 19;
“secure electronic signature” means an electronic signature treated as a secure electronic signature byvirtue of section 17 or2O.
an electronic record signed with a secure electronic signature can presume that based on the secure electronic signature, the sender is the originator of the electronic record, and he cannot easily repudiate his signature on the electronic record.
In the absence of the use of such security procedures, no such presumptions will arise for electronic records and electronic signatures.
PART VI :EFFECT OF DIGITAL SIGNATURES
Secure electronic record with digital signature
19. The portion of an electronic record that is signed with a digital signature shall be treated as a secure electronic record if the digital signature is a secure electronic signature by virtue of section 20.
Secure digital signature
20. When any portion of an electronic record is signed with a digital signature, the digital signature shall be treated as a secure electronic signature with respect to such portion of the record, if—
(a) the digital signature was created during the operational period of a valid certificate and is verified by reference to the public key listed in such certificate; and
(b) the certificate is considered trustworthy, in that it is an accurate binding of a public key to a person s identity because —
(i) the certificate was issued by a licensed certification authority operating in compliance with the regulations made under section 42
(ii) the certificate was issued by a certification authority outside Singapore recognised for this purpose by the Controller pursuant to regulations made under section 43;
(iii) the certificate was issued by a department or ministry of the Government, an organ of State or a statutory corporation approved by the Minister to act as a certification authority on such conditions as he may by regulations impose or specify; or (iv) the parties have expressly agreed between themselves (sender and recipient) to use digital signatures as a security procedure, and the digital signature was properly verified by reference to the sender's public key.
التشريع الماليزي Digital signature bill 1997
تقترب صياغة هذا التشريع في المادة 62 منه من الصياغة التي أخذ بها تشريع سنجابور حيث تنص هذه المادة علي ما يلي : حيث ينص علي أنه حيثما توجد قاعدة من القانون تتطلب توقيع أو اشترط نتائج معينة تترتب عن تخلفه فإن هذه القاعدة تستوفي يالتوقيع الرقمي حيث تتوافر الشروط التالية :
.
PART V: EFFECT OF DIGITAL SIGNATURE
62. Satisfaction of signature requirements
(I) Where a rule of law requires a signature or provides for certain consequences in the absence of a signature, that rule shall be satisfied by a digital signature where-
(a) that digital signature is verified by reference to the public key listed in a valid certificate issued by a licensed certification authority;
(b) that digital signature was affixed by the signer with the intention of signing the message; and
(c) the recipient has no knowledge or notice that the signer¬
(i) has breached a duty as a subscriber; or
(ii) does not rightfully hold the private key used to affix the digital signature.
(2) Notwithstanding any written law to the contrary-
(a) a document signed with a digital signature in accordance with this Act shall be as legally binding as a document signed with a handwritten signature, an affixed thumb-print or any other mark; and
(b) a digital signature created in accordance with this Act shall be deemed to be a legally binding signature.
(3) Nothing in this Act shall preclude any symbol from being valid as a signature under any other applicable law.
63. Unreliable digital signatures
(I) Unless otherwise provided by law or contract, the recipient of a digital signature assumes the risk that a digital signature is forged, if reliance on the digital signature is not reasonable under the circumstances.
(2) Where the recipient determines not to rely on a digital signature under this section, the recipient shall promptly noti1~ the signer of its determination not to rely on a digital signature and the grounds for that determination.
64 Digitally signed document deemed to be written document
(1) A message shall be as valid , enforceable and effective as if it had been written on paper if :
a) it bears in its entirety a digital signature ; and b) that digital signature is verified bu public key listed in a certificate which :
(i) was issued be a licensed certification authority ; and
(ii) was valid at the time the digital signature was created.
(2) Nothing in this Act shall preclude any message, document or record from being considered written or in writing under any other applicable law.
65. Digitally signed document deemed to be original document.
A copy of a digitally signed message shall be as valid, enforceable and effective as the original of the message unless it is evident that the signer designated an instance of the digitally signed message to be a unique original, in which case only that instance constitutes the valid, enforceable and effective message.
66. Authentication of digital signatures
A certificate issued by a licensed certification authority shall be an acknowledgement of a digital signature verified by reference to the public key listed in the certificate, regardless of whether words of an express acknowledgement appear with the digital signature and regardless of whether the signer physically appeared before the licensed certification authority when the digital signature was created, if that digital signature is-
(a) verifiable by that certificate; and (b) affixed when that certificate was valid.
67. Presumptions in adjudicating disputes
In adjudicating a dispute involving a digital signature, a court shall presume-
(a) that a certificate digitally signed by a licensed certification authority and¬
(i) published in a recognised repository; or
(ii) made available by the issuing licensed certification authority or by the
subscriber listed in the certificate, is issued by the licensed certification authority
which digitally signed it and is accepted by the subscriber listed in it;
(b) that the information listed in a valid certificate and confirmed by a licensed certification authority issuing the certificate is accurate;
(c) where a digital signature is verified by the public key listed in a valid certificate issued by a licensed certification authority¬
(i) that digital signature is the digital signature of the subscriber listed in that certificate;
(ii) that digital signature was affixed by that subscriber with the intention of signing the message; and
(iii) the recipient of that digital signature has no knowledge or notice that the signer-
(A) has breached a duty as a subscriber; or
(B) does not rightfully hold the private key used to affix the digital signature; and
(d) that a digital signature was created before it was time-stamped by a recognised date/time stamp service utilising a trustworthy system.
-القانون الفديرالي الهندي للتجارة الإلكترونية الصادر في 19/10/ 1998
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