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Electronic Documents and the Law.

The Electronic Communications Act 2000, arranges for ministers to provide subsidiary legislation for each of the situations in which the document in writing (a paper document) is now required by law, and to authorise that document to exist and be executed electronically.

Throughout the history of this discussion one consistent strand of discussions was that the Act was in large part unnecessary. English law is flexible enough to achieve what is required. To confirm this, there is the case of Victor Chandler International v Commissioners of Customs and Excise and another Times 8th of March 2000. An English court has always been able to ask itself whether what was presented was intended to be a signature, and to accept it if it seemed appropriate.

In this case, a bookmaker based abroad sought business through advertising his services through Teletext pages and appropriate television network in the UK. The bookmaking services were clearly run which would normally require proper bookmaking licences to be in existence here and it was an offence under the Betting and Gaming Duties Act which advertise without the appropriate licence.

At the first instance it was argued that the Teletext page was not a document within the Act, and that therefore the publication of the Teletext page was not caught. That argument succeeded, but the commissioners appealed and their appeal was successful.

A more detailed version of the argument was that the Act prohibited "an advertisement or other document... issued, circulated or distributed" within the United Kingdom.

The Court of Appeal held that the word 'document' here was intended to refer to an act in which held information the computer file was in effect the paper and the characteristic which turned that into the document was the presence of recorded information.

The decision is significant, because the act creates a criminal penalty and will therefore be construed more tightly against the prosecutor than might other documents. The readiness by four of the court to hold that such an electronic file was a document with in the act shows the flexibility of the British courts.

If the courts are able to provide this interpretation of an act, it is arguable that the Electronic Communications Bill does very little indeed to add to this power. There are clearly some situations where an explicit requirement of writing is made and legislation would be required. Two examples are for assignments of copyright and transfers of land. Nevertheless, and despite government protestations to the country, some see the Electronic Communications Bill as providing a structure through which a government so disposed could re-introduce such ideas as key escrow for digital signature software which idea proved so unpopular to practitioners and industry.

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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/ecoElecDocu.shtml 231 18 October 2013