ELECTRONIC COMMERCE ACT 2006

Electronic Commerce LAWS OF MALAYSIA REPRINT Act 658 electronic commerce act 2006 As at 1 November 2012 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 2012 1 2 Laws of Malaysia Date of Royal Assent … Date of publication in the Gazette Act 658 … 30 August 2006 … 31 August 2006 Electronic Commerce LAWS OF MALAYSIA Act 658 electronic commerce act 2006 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 3. Use not mandatory 2. 4. 5. Application Reference to other written laws Interpretation Part II LEGAL RECOGNITION OF ELECTRONIC MESSAGE 6. 7. Legal recognition of electronic message Formation and validity of contract Part III FULFILMENT OF LEGAL REQUIREMENTS BY ELECTRONIC MEANS 8. Writing 10. Seal 9. 11. 12. 13. 14. 15. 16. Signature Witness Original Retention of document Copy Prescribed form Service and delivery 3 4 Laws of Malaysia Part IV COMMUNICATION OF ELECTRONIC MESSAGE Section 17. Attribution of electronic message 19. Each electronic message to be regarded separately 18. 20. 21. 22. 23. 24. Contents of electronic message Time of dispatch Time of receipt Place of dispatch Place of receipt Acknowledgement of receipt Part V MISCELLANEOUS 25. Regulations Schedule Act 658 Electronic Commerce 5 LAWS OF MALAYSIA Act 658 electronic commerce act 2006 An Act to provide for legal recognition of electronic messages in commercial transactions, the use of the electronic messages to fulfill legal requirements and to enable and facilitate commercial transactions through the use of electronic means and other matters connected therewith. [19 October 2006; P.U. (B) 280/2006] ENACTED by the Parliament of Malaysia as follows: Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Electronic Commerce Act 2006. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette. Application 2. (1) Subject to section 3, this Act shall apply to any commercial transaction conducted through electronic means including commercial transactions by the Federal and State Governments. (2) This Act shall not apply to the transactions or documents specified in the Schedule. 6 Laws of Malaysia Act 658 (3) The Minister may by order amend, vary, delete from or add to the Schedule. Use not mandatory 3. (1) Nothing in this Act shall make it mandatory for a person to use, provide or accept any electronic message in any commercial transaction unless the person consents to the using, providing or accepting of the electronic message. (2) A person’s consent to use, provide or accept any electronic message in any commercial transaction may be inferred from the person’s conduct. Reference to other written laws 4. The application of this Act shall be supplemental and without prejudice to any other laws regulating commercial transactions. Interpretation 5. In this Act, unless the context otherwise requires— “electronic” means the technology of utilizing electrical, optical, magnetic, electromagnetic, biometric, photonic or other similar technology; “Minister” means the Minister charged with the responsibility for domestic trade and consumer affairs; “electronic message” means an information generated, sent, received or stored by electronic means; “originator” means a person by whom or on whose behalf, the electronic message is generated or sent; “addressee” means a person who is intended by the originator to receive the electronic message; Electronic Commerce 7 “information processing system” means an electronic system for generating, sending, receiving, storing or processing the electronic message; “electronic signature” means any letter, character, number, sound or any other symbol or any combination thereof created in an electronic form adopted by a person as a signature; “commercial transactions” means a single communication or multiple communications of a commercial nature, whether contractual or not, which includes any matters relating to the supply or exchange of goods or services, agency, investments, financing, banking and insurance. Part II LEGAL RECOGNITION OF ELECTRONIC MESSAGE Legal recognition of electronic message 6. (1) Any information shall not be denied legal effect, validity or enforceability on the ground that it is wholly or partly in an electronic form. (2) Any information shall not be denied legal effect, validity or enforceability on the ground that the information is not contained in the electronic message that gives rise to such legal effect, but is merely referred to in that electronic message, provided that the information being referred to is accessible to the person against whom the referred information might be used. Formation and validity of contract 7. (1) In the formation of a contract, the communication of proposals, acceptance of proposals, and revocation of proposals and acceptances or any related communication may be expressed by an electronic message. (2) A contract shall not be denied legal effect, validity or enforceability on the ground that an electronic message is used in its formation. 8 Laws of Malaysia Act 658 Part III FULFILMENT OF LEGAL REQUIREMENTS BY ELECTRONIC MEANS Writing 8. Where any law requires information to be in writing, the requirement of the law is fulfilled if the information is contained in an electronic message that is accessible and intelligible so as to be usable for subsequent reference. Signature 9. (1) Where any law requires a signature of a person on a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by an electronic signature which— (a) is attached to or is logically associated with the electronic message; (b) adequately identifies the person and adequately indicates the person’s approval of the information to which the signature relates; and (c) is as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required. (2) For the purposes of paragraph (1)(c), an electronic signature is as reliable as is appropriate if— (a) the means of creating the electronic signature is linked to and under the control of that person only; (b) any alteration made to the electronic signature after the time of signing is detectable; and (c) any alteration made to that document after the time of signing is detectable. (3) The Digital Signature Act 1997 [Act 562] shall continue to apply to any digital signature used as an electronic signature in any commercial transaction. Electronic Commerce 9 Seal 10. (1) Where any law requires a seal to be affixed to a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by a digital signature as provided under the Digital Signature Act 1997. (2) Notwithstanding subsection (1), the Minister may, by order in the Gazette, prescribe any other electronic signature that fulfills the requirement of affixing a seal in an electronic message. Witness 11. Where any law requires the signature of a witness on a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by an electronic signature of the witness that complies with the requirements of section 9. Original 12. (1) Where any law requires any document to be in its original form, the requirement of the law is fulfilled by a document in the form of an electronic message if— (a) there exists a reliable assurance as to the integrity of the information contained in the electronic message from the time it is first generated in its final form; and (b) the electronic message is accessible and intelligible so as to be usable for subsequent reference. (2) For the purposes of paragraph (1)(a)— (a) the criteria for assessing the integrity of the information shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement or any change which arises in the normal course of communication, storage and display; and (b) the standard of reliability required shall be assessed in the light of the purpose for which the document was generated and in the light of all other relevant circumstances. 10 Laws of Malaysia Act 658 Retention of document 13. Where any law requires any document to be retained, the requirement of the law is fulfilled by retaining the document in the form of an electronic message if the electronic message— (a) is retained in the format in which it is generated, sent or received, or in a format that does not materially change the information contained in the electronic message that was originally generated, sent or received; (b) is accessible and intelligible so as to be usable for subsequent reference; and (c) identifies the origin and destination of the electronic message and the date and time it is sent or received. Copy 14. Where any law requires any document to be retained, served, sent or delivered in more than one copy, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by retention, service, sending or delivery of the document in one copy. Prescribed form 15. Where any law requires any document to be in a prescribed form, the requirement of the law is fulfilled by a document in the form of an electronic message if the electronic message is— (a) formatted in the same or substantially the same way as the prescribed form; (b) accessible and intelligible so as to be usable for subsequent reference; and (c) capable of being retained by the other person. Electronic Commerce 11 Service and delivery 16. (1) Where any law requires any document to be served, sent or delivered, the requirement of the law is fulfilled by the service, sending or delivery of the document by an electronic means if an information processing system is in place— (a) to identify the origin, destination, time and date of service, sending or delivery; and (b) for the acknowledgement of receipt, of the document. (2) This section does not apply to— (a) any notice of default, notice of demand, notice to show cause, notice of repossession or any similar notices which are required to be served prior to commencing a legal proceeding; and (b) any originating process, pleading, affidavit or other documents which are required to be served pursuant to a legal proceeding. Part IV COMMUNICATION OF ELECTRONIC MESSAGE Attribution of electronic message 17. (1) An electronic message is that of the originator if it is sent by the originator himself. (2) As between the originator and the addressee, an electronic message is deemed to be that of the originator if it is sent by— (a) a person who has the authority to act on behalf of the originator in respect of that electronic message; or (b) an information processing system programmed by, or on behalf of, the originator to operate automatically. 12 Laws of Malaysia Act 658 (3) As between the originator and the addressee, the addressee is entitled to regard an electronic message as being that of the originator, and to act on that presumption, if— (a) the addressee properly applies an authentication method agreed between the originator and the addressee for ascertaining whether the electronic message was that of the originator; or (b) the electronic message as received by the addressee resulted from the actions of a person whose relationship with the originator or any agent of the originator enabled that person to gain access to an authentication method used by the originator to identify electronic message as its own. (4) Subsection (3) does not apply if— (a) the addressee has received a notice from the originator that the electronic message is not that of the originator and has reasonable time to act accordingly; or (b) the addressee knew or should have known that the electronic message was not that of the originator had h