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accessible for subsequent reference. Thus language to the effect that an
electronic document that is “readily accessible so as to be usable for
subsequent reference” is considered to create a functionally equivalent
document and meet the requirements of a statute for a written document.
2.3.14 Similarly, because electronic documents can be reproduced in multiples,
legislation may provide that a legislative requirement that X number of
copies be provided will be functionally satisfied by providing one
electronic copy that can be reproduced. There is no point in providing
the same electronic file multiple times.
2.3.15 The discussion of digital signatures, below, will provide more detail on
how legal or practical signatures may be met. The functional approach
of the New Zealand legislation, for example, states that requirements for
a signature can be met if:
- The electronic signature adequately identifies the signatory and
adequately indicates the signatory’s approval of the information
to which the signature is attached;
- The signature must be as reliable as appropriate given the
purpose for which, and the circumstances in which, the signature
is required; and
- Where information that must be given to a person is required to
be signed, the recipient must have consented to receiving the
electronic signature rather than a traditional paper-based
signature.
2.3.16 The test of whether the signature is as reliable as appropriate in the
circumstances, etc. is an evolving one. The UNCITRAL Model Law on
Electronic Signatures sets out some guidelines; this would be an
appropriate area for elaboration by regulations or guidelines, as well as
through court decisions. In Ontario, regulations have been developed
describing “reliability” and “prescribed information technology
standards” for electronic signatures etc. Similarly, regulations define the
equivalency requirements for sealed documents.
2.3.17 In some cases, legislation may be so inter-twined with language that
implies a paper-based system, such as the Botswana Stock Exchange
Act, that legislation establishing functional equivalency may authorise
the use of electronic communication, but only at a cost of confusion and
uncertainty. In such a case, it may be better to specifically amend an
individual statute and create an electronic regime tailored to that statute.
That has been done in some jurisdictions with respect to corporations
and securities law, as well as legislation dealing with financial and
banking settlement activity.