Intellectual Property Law

Malta's Electronic Commerce Act

By Martha L. Arias

Malta, a European financial center located in the Southern areas of the Mediterranean Sea, has developed comprehensive e-commerce legislation and is an active e-commerce player.  In 2001, Malta's government enacted the Electronic Commerce Act III, which has been amended five times (2002, 2004, 2005 and twice in 2007).  This act establishes rules regarding electronic signatures, certification authorities, electronic contracts, consumer protection, and electronic data.  This article provides a synopsis of Malta's rules on electronic contracts, electronic signatures and certification services, and computer crimes involving electronic data.

Electronic Contracts

Malta's Electronic Commerce Act III of 2001 (the E-Commerce Act) addresses electronic contracts in Part III, articles 9 through 11.  Electronic contracts are valid and will not be denied legal effect, validity or enforceability just because they are celebrated or entered into by electronic means. The offer, acceptance of the offer, subsequent amendments, and cancellation or revocation of the offer may be communicated by electronic means.  A contract is concluded when after placing his order the recipient of the service receives from the service provider an acknowledgement of receipt of the order made by the recipient; provided that (1) the service provider's acknowledgement is given without undue delay and by electronic means; and (2) the recipient's order and the acknowledgement of the receipt are deemed to have been received when the parties to whom they are addressed are able to access them.  The E-Commerce Act requires originators to provide addressees with effective and accessible means to identify and correct errors and accidental transactions prior to conclusion of electronic contracts.  Part IV of the E-Commerce Act, called Transmission of Electronic Communications, is relevant to the conclusion of electronic contracts. It describes the time of dispatch of an electronic communication, the time of receipt, the place of dispatch and receipt, and the attribution of electronic communications.

According to the First Schedule of Article 11, the following are the information requirements that electronic contracts must meet,

(1) "The name and address where the service provider is established;

(2) The electronic-mail address where the service provider can be contracted in a direct manner;

(3) The registration number of the service provider in any trade register or of any professional body if applicable;

(4) Where the activity of the service provider is subject to an authorization, the activities covered by the authorization granted to the service provider and the particulars of the authority providing such authorization;

(5) The Value Added Tax (VAT) registration number of the service provider where the service provider undertakes an activity that is subject to VAT;

(6) The different steps to follow to conclude the contract;

(7) The technical means for identifying and correcting input errors prior to the placing of the order;

(8) The language or languages in which the contract may be concluded;

(9) A statement of whether the concluded contract will be filed by the service provider and whether it will be accessible."

Electronic Signatures and Certification Services

Malta's law recognizes electronic signatures. Part V of the E-Commerce Act addresses signature certification services. The general rule is the provision of signature certification services or services related to electronic signatures do not require prior authorization. However, Minister's regulations may establish and maintain an accreditation scheme that enhances the levels of signature certification services, and designate accreditation authorities.

The Minister may supervise signature certification services that provide qualified certificates.  Also, the E-Commerce Act states that those who provide qualified certificates are liable for damages caused to any person who reasonably relies on such certificates.  Providers of qualified certificates may limit the use of such certificates provided that those limitations are clear and readily identified as limitations. In this case, the provider shall not be liable for damages caused for uses that did not acknowledge the limitations.

Computer Crimes Involving Electronic Data

The E-Commerce Act also typifies as criminal some acts that violate data security or computer misuse.  For instance, those who without authorization use a computer or any other device to access data, software, or documentation held in a computer or in any other computer; or uses, copies, or modifies such data, software, or documents is guilty of an offense.  Additionally, any person who outputs or copies any data, software, or supporting documentation from a computer in which it is held or stored, is guilty of a computer crime. Impair the operation of a system or software also constitutes a computer crime under Malta's law.  Moreover, altering, taking, installing, moving, erasing, destroying, or adding to any data, software, or supporting document, without authorization, constitutes a computer crime.  Disclosing or using another person's password or discovering a code or other access information without authorization constitutes computer misuse crime.

The following are computer crimes when committed without proper authorization (1) modifying computer equipment or supplies used or intended to be used in computer, computer system, or computer network; (2) taking possession of, damaging or destroying computer, computer system, computer network, or  computer supplies used or intended to be used in computer, computer systems, or computer networks.

Any of these crimes are sanctioned under Malta law even if committed outside Malta, when they affect computers, computer software, data, or supporting documentation located in Malta or connected to a computer located in Malta

Therefore, it is clear that Malta e-commerce law is in accord with European and international principles regarding electronic contracts, electronic signatures, and data and computer crimes.

Full post as published by IBLS Internet Law Blog on June 14, 2009 (boomark / email).