Hong KongElectronic Transactions Ordinance, electronic signatures and electronic records in place of writing
Electronic Transactions Ordinance (Cap. 553), ss. 3, 5, 6, 11, 13 and 15 and Schedules 1 and 2
In force.
A signatures and records rule binding public and private bodies.
- Obligation class
- Consent, Governance
As of .
What it requires
- An electronic record satisfies a legal requirement that information be in writing only if the information stays accessible so as to be usable for subsequent reference (section 5).
- Between parties that are not government entities, an electronic signature satisfies a signature requirement only if the method identifies the signer and shows their approval of the information, is reliable and appropriate for the purpose, and the other party consents to the method (section 6(1)).
- Where either party is a government entity, a digital signature must be supported by a recognized certificate, generated within its validity and used in accordance with its terms (section 6(1A)).
- Between non-government parties, obtain the recipient's consent before relying on an electronic record to give information the law requires or permits to be given in writing (section 15).
- Do not rely on electronic records or signatures for the matters listed in Schedule 1, including wills, trusts, powers of attorney, instruments requiring stamping, dealings in land, oaths, affidavits and statutory declarations, unless the rule of law concerned expressly provides otherwise, or in proceedings listed in Schedule 2 unless their rules allow it (sections 3 and 13 and Schedules 1 and 2).
These lines are LexLint's reading of the law's text, as of .
What this law does
Section 5 treats an electronic record as satisfying a rule of law that requires or permits information to be in writing if the information is accessible so as to be usable for subsequent reference. Section 6(1) treats an electronic signature as satisfying a signature requirement between parties neither of which is a government entity if the method identifies the signer and indicates their approval, is reliable and appropriate in the circumstances, and the other party consents to the method.
Section 6(1A) requires a digital signature supported by a recognized certificate where either party is a government entity. Section 15 makes sections 5 and 5A apply between non-government parties only if the person to whom the information is to be given consents to receiving an electronic record.
Under section 3, unless the rule of law expressly provides otherwise, Schedule 1 excludes wills and other testamentary documents, trusts other than resulting, implied or constructive trusts, powers of attorney, instruments required to be stamped, Government conditions of grant and Government leases, conveyances and dispositions of land, oaths and affidavits, statutory declarations, judgments and court orders, warrants, and negotiable instruments other than cheques marked not negotiable.
Sections 5 to 8 also do not apply in proceedings before the courts and tribunals listed in Schedule 2 unless a rule of law for those proceedings provides for it (section 13), or to a requirement the Permanent Secretary excludes by order (section 11). The Ordinance commenced on ; section 6(1) in its present form, section 6(1A) and section 15(2A) and (2B) were inserted by Ordinance 14 of 2004.
When LexLint raises it
When your app profile says your app collects electronic signatures.