Tania Maycock outlines the most important effect of the Electronic Communications Act 2000
Press coverage of the progress of the Electronic Communications Bill has tended to concentrate on the ‘Big Brother’ aspect, being the controversial provisions which would have empowered the police to demand ‘keys’ so that they could unscramble encrypted messages. These provisions were heavily criticised as detracting from the main purpose of the Bill which is to promote e-commerce and were not included in the Electronic Communications Act 2000 (the Act) which came into being on 25th May 2000. The Act does not provide the date when it is to come into force.
Part I of the Act provides a mechanism for monitoring cryptography service providers which will presumably be brought into force if the industry demonstrates that it is failing to regulate itself satisfactorily. The purpose of Part I is perhaps to send a warning shot to service providers and to increase confidence amongst users regarding security levels of electronic communications.
It is the second part of the Act which will have a wide ranging effect. The principal provision of Part II of the Act is Section 7 which declares that an electronic signature shall be considered to be as good as a written one and recognised as such by the Courts. To have this effect an electronic signature has to be certified. In order to certify your electronic signature you have to make a statement confirming that:
“the signature, ... a means of producing, communicating or verifying the signature, or ...
a procedure applied to the signature”
is an acceptable way of establishing the authenticity or integrity of a communication. Therefore if an electronic communication contains your certified electronic signature that is sufficient not only to authenticate the communication but to establish its integrity.
The Act provides that the authenticity of a communication relates to proving the source, the time, the date and whether or not the communication was intended to have legal effect and that the integrity of a communication relates to whether or not it has been tampered with. The integrity factor alone means that one has to have a certain amount of faith in the security of cyber space communications before certifying an electronic signature.
The Act goes on to empower “appropriate Ministers” to amend certain Acts of Parliament so as to authorise or facilitate the use of electronic communications and storage. This means, for example, that acts which stipulate that written signatures are required for certain transactions can be amended to allow the use of electronic signatures too. We will have to wait and see to what acts these powers are applied, to what effect and how quickly.
What does all this mean in practice? When the Act comes into force contracts can be agreed, signed and exchanged electronically. There will be an increasing number of projects which are managed electronically and it is worth noting that the JCT Contract already has a protocol for an Electronic Data Interchange supplement. The delivery of information should be quicker, there should be less paper on site, contractual notices can be delivered electronically and authenticated by an electronic signature, similarly design details can be provided and stored electronically. Furthermore electronic communications can be utilised for the purpose of issuing certificates and payments.
If this is the way things are going to go it is all the more important for companies to draw up and implement e-mail policies for the use of electronic communications and signatures, storage of electronic information, the security of the same and the safeguarding of all such material for future use and reference.
For further information on this topic, please contact Tania Maycock at tania.maycock@cms-cmck.com or on +44 (0) 7367 3000
