The International Monetary Fund whilst addressing the current and projected one-year economic impact of COVID-19, recently predicted that “the global economy will experience its worst recession since the Great Depression, surpassing that seen during the global financial crisis a decade ago”¹. As this new reality dawns, more and more countries have shifted their attention on ways to jump-start their economies whilst also keeping their populations safe. Once again, we see a global focus on innovation, technology, and in particular, electronic transactions.

In Trinidad and Tobago, the Electronic Transactions Act²(“the Act”) was enacted on 28th April 2011³. The stated purpose of the Act is to among other things:

• Facilitate electronic transactions, electronic commerce, to eliminate barriers to electronic commerce resulting from uncertainties over writing and signature requirements, and to promote the development of legal and business infrastructure necessary to implement secure electronic commerce; and
• Promote public confidence in the integrity and reliability of electronic records and electronic commerce, and to foster the development of electronic commerce through the use of electronic signatures to lend authenticity and integrity to correspondence in any electronic medium.⁴

In this article, we consider (i) the requirements for legal recognition of electronic transactions (ii) formation of contracts by electronic means and (iii) electronic signatures. 

Requirements for legal recognition of electronic transactions:

By virtue of the Act, electronic transactions are given legal recognition where the information, record or data message is sent to a person and is:

1. Accessible; and
2. Capable of retention for subsequent reference.

Generally, electronic information, records, or data messages that meet these requirements will be considered equivalent to records in writing. 

In addition, electronic information, record or data message will satisfy any legal requirement to be presented or retained in its original form where:

1. There is a reliable assurance as to the maintenance of the integrity of the information by the person who presented the information. The criteria for assessing the integrity of the information is whether the information, record or data has remained complete and unaltered (apart from any changes that arise in the normal course of communication, storage and display); 
2. the information is accessible; and
3. the information is capable of retention for subsequent reference.

Formation of contracts:

Offers and acceptance of an offer or any other matter that is material to the operation or formation of a contract can be validly done by electronic means. 

Parties can also rely on the use of electronic agents for the formation of contracts. There are, however, safeguards in the Act to address instances where errors may have occurred in dealing with electronic agents, which may render a contract void. The Act also considers questions of the timing of sending and receiving electronic data messages where the parties have not agreed on a specified time. 

Electronic Signature:

Unless there is a specific provision at law to the contrary, the Act allows parties to agree to the use of electronic signatures. Electronic signatures are defined by the Act as, “information in electronic form affixed to, or logically associated with a data message which may be used to (a) identify the signatory in relation to that data message or (b) indicate the signatory’s approval of the information contained within that data message.”⁵

Any such electronic signature must, however, meet a minimum standard of reliability and integrity, or conform with the standard which the parties have agreed to by contract. The Act, as well as providing that Regulations may be prescribed by the relevant Minister on this issue, provides the following guidance with regard to the reliability and integrity of electronic signatures:

1. the authentication technology must uniquely link the user to the signature;
2. the signature must be capable of identifying the user;
3. the signature must be created using a means that can be maintained under the sole control of the user;
4. the signature will be linked to the information to which it relates in such a manner that any subsequent change in the information is detectable.⁶

Further, an electronic signature that is associated with an electronic authentication product issued by an Electronic Authentication Service Provider will satisfy the statutory requirements for reliability and integrity ⁷. Part V of the Act addresses the issue of Electronic Authentication Service Providers, however, to date this section of the Act has not yet been proclaimed and is therefore not in effect. Therefore, at present, the only Electronic Authentication Product which can be used to validate an electronic signature is the electronic certificates referred to in the Schedule to the Act. 

Non-application of the act:

The Act does not apply, however, where there is a written law requiring writing, signatures or original documents for wills, conveyances or land, powers of attorney and trusts, immigration and citizenship documents and recognition or endorsement of negotiable instruments (such as cheques, money orders or promissory notes)⁸. Further, the Act does not require any Public Body to accept or issue any document in electronic form. 

Conclusion:

The Act has encouraged and facilitated the use of, and confidence in, the use of electronic transactions and electronic signatures in Trinidad and Tobago. It will certainly prove to be quite useful in these times of mandatory remote working and social distancing, as the global workforce settles into the “new norm”. 

1. Gita Gopinath, the IMF’s chief economist - the World Economic Outlook report↩
2. No. 6 of 2011↩
3. Parts I(Preliminary), II (Requirements for Legal Recognition), III (Contract Formation & Default Provisions) and IV (Electronic Signatures) were proclaimed on 6th January 2012 and Part VII (Government and Other Public Bodies) was proclaimed on 18th January 2012. The remainder of the Act has not yet been proclaimed. ↩
4. Section 5↩
5. Section 2↩
6. Section 31↩
7. Section 32↩
8. Section 6↩