The Union of Myanmar
The State Peace and Development Council
The Electronic Transactions Law
( The State Peace and Development Council Law No. 5 / 2004 )
The 12th Waxing of Kason 1366 M.E.
( 30th April, 2004 )
The
State Peace and Development Council hereby enacts the following Law:-
Chapter
I
Title
and Definition
1.
This Law shall be called the Electronic Transactions Law.
2.
The following expressions contained in this Law shall have the meanings given hereunder:-
(a) Information includes
data, texts, images, sounds, codes, computer programmes, software and
databases;
(b) Electronic record means a record generated, sent,
received or stored by means of electronic, magnetic, optical or any other
similar technologies in an information system or for transmission from one information
system to another;
(c) Electronic data
message means an information generated, sent, received or stored by means
of electronic, optical or any other similar technologies,including electronic
data interchange, fax, e-mail, telegraph, telex and telecopy.
(d) Computer means
a device capable of receiving, transmitting, storing, processing or retrieving,
information and records, using arithmetic and logical means by manipulation of
electronic, magnetic, optical or any other similar technologies;
(e) Computer network means
the network system of the interconnection of computers through use of satellite
or by any other technologies;
(f) Electronic
signature means any symbol or mark arranged personally or on his behalf by
electronic technology or any other similar technologies to verify the
authenticity of the source of the electronic record and the absence of
amendment or substitution;
(g) Certification
authority means a person or an organization that has been granted a licence
by the Control Board under this Law for services in respect of the electronic
signature;
(h) Certificate means
the certificate issued to a subscriber by the certification authority as an
electronic data message or other record identifying the relation between the
signer of an electronic signature and the electronic data message;
(i) Originator means
a person by whom or on whose behalf the electronic record or electronic data
message purports to have been created, generated or sent. This expression does
not include a person acting as an intermediary with respect to electronic
record or electronic data message;
(j) Addressee means
a person who is intended by the originator to receive the electronic record or
electronic data message. This expression does not include a person acting as an
intermediary with respect to electronic record or electronic data message;
(k) Subscriber means
a person who is by any technologies identified as an authentic signer of an
electronic signature in the certificate;
(l) Central Body means
the Central Body of Electronic Transactions formed under this Law;
(m) Ministry means
the Ministry of Communications, Posts and Telegraphs;
(n) Control Board means
the Electronic Transactions Control Board formed under this Law.
Chapter
II
Aims
3.
The aims of this Law are as follows : -
(a) to support with
electronic transactions technology in building a modern, developed nation;
(b) to obtain more
opportunities for all-round development of sectors including human resources,
economic, social and educational sector by electronic transactions
technologies;
(c) to recognize the
authenticity and integrity of electronic record and electronic data message and
give legal protection thereof in matters of internal and external transactions,
making use of computer network;
(d) to enable
transmitting, receiving and storing local and foreign information
simultaneously, making use of electronic transactions technologies;
(e) to enable
communicating and co-operating effectively and speedily with international
organizations, regional organizations, foreign countries, local and foreign
government departments and organizations, private organizations and persons,
making use of computer network.
Chapter
III
Application
4.
(a) The provisions contained in
this Law shall apply to any kind of electronic record and electronic data
message used in the context of commercial and non- commercial activities
including domestic and international dealings, transactions, arrangements,
agreements,contracts and exchanges and storage of information.
(b) This Law shall apply
to any person who commits any offence actionable under this Law within the
country or from inside of the country to outside of the country, or from
outside of the country to inside of the country by making use of the electronic
transactions technology.
5.
The provisions contained in this Law shall not apply to the following matters:-
(a) “ Will” defined in sub-section (h) of section 2 of the
Succession Act;
(b) “ Negotiable
instrument” defined in section 13 of the Negotiable Instruments Act;
(c) “ Trust” defined in section 3 of the Trusts Act;
(d) “ Power of Attorney” granted under the Powers of Attorney
Act;
(e) Documents relating to title;
(f) Instruments prescribed in any existing law to be registered;
(g) Matters exempted by
the Ministry by issuing notification, with the approval of the Government.
Chapter
IV
Formation
of the Central Body of Electronic Transactions and Functions and Duties thereof
6.
The Government: -
(a) shall form the Central
Body of Electronic Transactions for enabling the implementation of the aims of
this Law, comprising the Minister for the Ministry of Communications, Posts and
Telegraphs as the Chairman and persons from the relevant ministries, government
departments and organizations and technicians as members;
(b) may, in forming the
Central Body, determine the Vice-Chairman and Joint Secretary and assign duties
thereof;
(c) may reorganize the Central Body as may be necessary.
7.
The functions and duties of the Central Body are as follows: -
(a) laying down plans for
application step by step of electronic transactions technologies extensively in
building the modern, developed nation;
(b) laying down and
implementing programmes for enriching experience and knowledge on electronic transactions
technologies and readiness in globalization process;
(c) carrying out
activities to be in conformity with the policies relating to electronic
transactions technologies, legal affairs and specifications to enable
communicating, co-operating and dealing effectively and speedily, with
international organizations, regional organizations, foreign countries and
local and foreign organizations;
(d) communicating and
co-operating with international organizations, regional organizations, foreign
countries, local and foreign organizations on matters relating to electronic
transactions technologies;
(e) forming the Control Board and supervising and guiding
thereof;
(f) forming the necessary
working committees and stipulating functions and duties thereof for enabling
the implementation of their functions and duties successfully.
8.
The Central Body may, if necessary, assign any of its functions and duties to
an appropriate government department and organization or person.
Chapter
V
Formation
of the Electronic Transactions Control Board
and
Functions and Powers thereof
9.
The Central Body:-
(a) shall, for the
purposes of this Law, form the Electronic Transactions Control Board comprising
suitable persons and experts for enabling the supervision of the activities of
the electronic transactions.
(b) may reorganize the Control Board as may be necessary.
10.
The Control Board shall exercise and carry out the following functions and powers
under the guidance of the Central Body:-
(a) issuing licence to
enable performing as a certification authority and refusing to issue the same;
(b) specifying the manner
in which dealings shall be conducted between the certification authority and
the subscribers;
(c) specifying the terms
and conditions and standards subject to which the certification authority shall
conduct its business and the detailed data to be recorded in the accounts to be
maintained by it;
(d) specifying the
qualifications and experience that employees of the certification authority
should possess;
(e) settling disputes
relating to interests which arise between the certification authority and the
subscriber;
(f) facilitating the
establishment of any electronic system by a certification authority either
solely or jointly with other certification authority and regulation of such
system;
(g) maintaining a database
containing the disclosure record by certification authority of particulars that
shall be accessible to the public;
(h) reproducing, copying
or extracting, if necessary, of records, accounts, data and documents stored by
a certification authority and examining thereof;
(i) having access to and
inspecting and checking the operation of any computer system and any associated
apparatus or material which it has reasonable cause to suspect is or has been
in use in connection with any offence under this Law;
(j) exposing and acquiring
any necessary identification document from any person with respect to any
offence contained in this Law;
(k) examining and supervising the activities of the
certification authority;
(l) investigating as may
be necessary to scrutinize whether this Law and rules, procedures,
notifications, orders and directives issued under this Law are abided by or not;
(m) recognizing any
foreign certification authority in accordance with the stipulations;
(n) submitting its
activities to the Central Body in accordance with the stipulations;
(o) performing other
functions and duties as are assigned by the Central Body and the Ministry from
time to time.
11.
The Control Board may, if necessary, assign any of its functions and duties to
a body after forming it or to an expert, with the approval of the Central Body.
Chapter
VI
Certification
Authority
12.
Any person or organization from inside or outside of the country desirous of
performing service as a certification authority shall apply to the Control
Board to obtain the licence in accordance with the stipulations.
13.
The Control Board may, after scrutinizing the licence application under section
12, issue the licence to the person or organization by prescribing the terms and
conditions or refuse to issue the same.
14.
The certification authority shall:-
(a) utilize the
trustworthy system so as not to cause intrusion and misuse of computer
hardware, software and procedures of computer;
(b) prescribe a reasonable
level of reliability in its services which are reasonably suited to the
performance of intended functions;
(c) carry out the secrecy
and privacy of the electronic signatures in accordance with the security
procedures ;
(d) observe the specified standards;
(e) mention the detailed facts of electronic transactions
certificate;
(f) disclose its service that can be provided with respect to
issuance of certificate;
(g) disclose facts that
may materially and adversely affect reliability, or responsibility or guaranty
of a certificate that is issued or its ability to perform its services;
(h) in the event of
occurrences that may materially and adversely affect due to conditions
permitted in the certificate or failure in the computer system:-
(i) notify the person who
may foreseeably be affected, by any possible means;
(ii) act in accordance
with procedures governing such an occurrence specified in its certification
practice statement;
(i) comply with the
regulations and duties prescribed by the Control Board from time to time.
15.
(a) The certification authority who
obtains a licence issued under section 13 shall, on submitting a proposal to
obtain a permit under the Myanmar Citizens Investment Law or Union of Myanmar
Foreign Investment Law, apply to the Myanmar Investment Commission together
with the licence issued by the Control Board.
(b) The Myanmar Investment
Commission may, with respect to application under sub-section (a), seek the
remark of the Control Board, if necessary.
Chapter
VII
Subscriber
16.
(a) Any person, desirous of
performing as a subscriber, shall apply to the certification authority to
obtain the certificate in accordance with the stipulations.
(b) The certification
authority may, after scrutinizing the application under sub-section (a), issue
the certificate by prescribing conditions or refuse to issue the same.
17.
The subscriber shall: -
(a) when using valid
signature by decryption of the electronic signature, take care so that such
decryption may not be used by others unlawfully;
(b) in using the
certificate issued for electronic signature during the period granted, take
care to be completely accurate and correct with respect to facts relevant to
him or facts that are to be inserted;
(c) if the secrecy of
decryption of the electronic signature has been compromised or is in a
situation where compromise may possibly occur, inform the persons who are
related to his electronic signature as arranged by the certification authority
or by any suitable arrangement without delay.
18.
The subscriber shall be responsible for the consequences of the loss and damage
to be caused by his failure to comply with the provisions of section 17.
Chapter
VIII
Electronic
Record, Electronic Data Message
and
Electronic Signature
19.
(a) Matters prescribed to be reduced
to writing or to be signed under any existing law may be made by electronic
record, electronic data message or electronic signature.
(b) The electronic record,
electronic data message or electronic signature made under sub-section (a)
shall be lawful as if they were made under the relevant law.
20.
The originator and the addressee shall, in accordance with the stipulated
means, perform the sending, receiving or storing of electronic record,
electronic data message or electronic signature. However, if there is a
specific agreement between them, it may be performed in accordance with the
means of such agreement.
Chapter
IX
Contracts
made by Electronic Technology
21.
In making contracts unless otherwise agreed by the parties, offer, acceptance
of offer and other requirements may be made by electronic technology.
22.
The electronic record and electronic data message shall be deemed to be that of
the originator if it was sent by the originator himself or by a person who had
the authority to act on behalf of the originator or by an information system programmed
by or on behalf of the originator to operate automatically.
23.
An addressee is entitled to regard an information electronic record or electronic
data message as being that of the originator if it conforms to any of the
following points and to act on that assumption:-
(a) sending in accordance
with the procedure previously agreed between the originator and the addressee;
(b) receiving by the
addressee data message which resulted from the action of a person who has
relationship with the originator or who has the authority to act on behalf of
the originator and sending by a procedure used by the originator.
24.
On or before sending of the electronic record or electronic data message, the
originator and the addressee:-
(a) may acknowledge the receipt by any of the following
procedures:-
(i) communicating by the
addressee himself or automated or by any other means;
(ii) any conduct
sufficient to indicate to the originator that addressee has received it;
(b) may enter into specific agreement in respect of the
acknowledgment of receipt.
25.
Where:-
(a) the originator has
stated that electronic record or the electronic data message is conditional on
receipt of the acknowledgement of the electronic data message or electronic
record, it shall be treated as though it had never been sent until the
acknowledgement is received;
(b) the originator has not
stated that electronic record or the electronic data message is conditional on
receipt of acknowledgement and the acknowledgement has not been received by the
originator within the time specified or agreed or if no time has been specified
or agreed within a reasonable time, the originator may give notice to the
addressee stating that no acknowledgement has been received.
26.
Unless otherwise agreed between the originator and the addressee in respect of
dispatch and receipt of an electronic record or electronic data message:-
(a) dispatch of it occurs
when it enters information system outside the control of the originator or his
agent;
(b) the time of receipt of it is as follows:
(i)
the time when it enters the designated information system;
(ii) if an information
system which is not designated is used, the time when it is retrieved by the
addressee;
(iii) if no information
system has been designated , the time when it enters an information system of
the addressee.
27.
(a) Unless otherwise agreed between
the originator and the addressee the place of business of the originator shall
be deemed to be the dispatching place and the place of business of the
addressee shall be deemed to be the receiving place.
(b) If the originator and
the addressee conduct business in more than one place, the principal place of
business shall be deemed to be the permanent address. If there is no place of
business, their place of permanent residence shall be deemed to be the
permanent address, and if it is a corporate body, the place where it has been
incorporated and established legally shall be deemed to be the permanent
address.
Chapter
X
Taking
Administrative Action
28.
The Control Board may, if the certification authority violates any condition of
the licence or is convicted for the commission of any offence under this Law, pass
any of the following administrative orders:-
(a) imposing a penalty as stipulated;
(b) suspending the licence subject to a time limit;
(c) cancelling the licence.
29.
The certification authority may, if the subscriber violates any condition contained
in the certificate or is convicted for the commission of any offence under this
Law, pass any of the administrative orders:-
(a) suspending the certificate subject to a time limit;
(b) cancelling the certificate.
Chapter
XI
Application
for Revision and Appeal
30.
(a) A person dissatisfied with any
order or decision made by the certification authority in respect of the refusal
of issuing certificate, suspension of the certificate subject to a time limit
or cancellation of the certificate may apply for revision to the Control Board
within 30 days from the date of passing such order or decision;
(b) The Control Board may
confirm, revise or set aside the order or decision made by the certification
authority.
31.
(a) A person dissatisfied with any
order or decision made by the Control Board in respect of the refusal of
issuing certificate, imposing a penalty as stipulated, suspension of licence
subject to a time limit or cancellation of the licence or with any order or
decision made under sub-section (b) of section 30 may file an appeal to the
Central Body within 60 days from the date of passing such order or decision;
(b) The Central Body may
confirm, revise or set aside the order or decision made by the Control Board.
32.
The decision made by the Central Body under sub-section (b) of section 31 shall
be the final and conclusive.
Chapter
XII
Offences
and Penalties
33.
Whoever commits any of the following acts by using electronic transactions technology
shall, on conviction be punished with imprisonment for a term which may extend
from a minimum of 7 years to a maximum of 15 years and may also be liable to a
fine:-
(a) doing any act
detrimental to the security of the State or prevalence of law and order or
community peace and tranquillity or national solidarity or national economy or
national culture.
(b) receiving or sending
and distributing any information relating to secrets of the security of the
State or prevalence of law and order or community peace and tranquillity or
national solidarity or national economy or national culture.
34.
Whoever commits any of the following acts shall, on conviction be punished with
imprisonment for a term which may extend to 5 years or with fine or with both:-
(a) sending, hacking,
modifying, altering, destroying, stealing, or causing loss and damage to the electronic
record, electronic data message, or the whole or part of the computer programme
dishonestly;
(b) intercepting of any
communication within the computer network, using or giving access to any person
of any fact in any communication without permission of the originator and the
addressee;
(c) communicating to any
other person directly or indirectly with a security number, password or
electronic signature of any person without permission or consent of such
person;
(d) creating, modifying or
altering of information or distributing of information created, modified or
altered by electronic technology to be detrimental to the interest of or to
lower the dignity of any organization or any person.
35.
Any certification authority or any of his officer or employee who violates any
of the prohibitions contained in the order issued by the Control Board shall, on
conviction be punished with imprisonment for a term which may extend to 3 years
or with fine or with both.
36.
Whoever violates any of the prohibitions contained in the rules, notifications and
orders issued under this Law shall, on conviction be punished with imprisonment
for a term which may extend to 1 year or with fine or with both.
37.
Whoever commits any of the following acts shall, on conviction be punished with
imprisonment for a term which may extend to 1 year or with fine or with both :
-
(a) knowingly
misrepresents to the certification authority his identity or authorisation in
applying for a certificate or in submitting for suspension or cancellation of a
certificate;
(b) obstructing or
impeding or assaulting the Central Body and body or person assigned duty by it
or the Control Board and body or person assigned duty by it which performs the
functions and duties in accordance with this Law or failing to comply with the
demand to perform in accordance with this Law.
38.
Whoever attempts to commit any offence of this Law or conspires amounting to an
offence or abets the commission of an offence shall be punished with the punishment
provided for such offence in this Law.
Chapter
XIII
Miscellaneous
39.
The government departments and organizations shall recognize the transaction of
electronic record or electronic data message as lawful for the following matters:-
(a) submitting, accepting or retention of documents ;
(b) issuing permit, licence or approval ;
(c) claiming the required
payment , paying, receiving and issuing a receipt therefor.
40.
The persons making use of electronic transactions may determine the required
type and level of security of electronic record and electronic data message and
may select, use and implement the methods which accord with their requirement.
41.
The Ministry shall determine the tenure of licence, licence fees and renewal
fees of tenure of licence in respect of business licence to enable performance
as the certification authority.
42.
The Control Board has the right to recover the fees and fines to be received
under this Law from the defaulter as if they were arrears of land revenue.
43.
The Ministry :-
(a) may prescribe and
allow remuneration to the members of the Central Body, who are not government
servants.
(b) shall arrange to carry
out the functions of the office of Central Body and shall also bear the
expenses.
44.
In prosecuting under this Law, prior sanction of the Central Body shall be obtained.
45.
Any offence contained in this Law is cognizable by the Myanmar Police Force.
46.
If an exhibit involved in any offence prosecuted under this Law is not easily
producible before the Court, such exhibit needs not be produced before the Court.
However, a report with other relevant documentary evidence as to the manner of
custody of the same may be submitted. Such submission shall be deemed as if it
were a submission of the exhibit before the Court and the relevant Court may
dispose of the same in accordance with Law.
47.
The expression “experts” referred to in section 45 of the Evidence Act shall be
deemed to include the Control Board, the body or person assigned duty by it or
the certification authority.
48.
Information, electronic record, electronic data message, electronic signature or
other documents communicated between the originator and the addressee shall not
be denied legal effect, validity or enforceability solely on the ground of
being made through electronic technology.
49.
No suit or prosecution shall lie against the Central Body and body or person
assigned duty by it or the Control Board and body or person assigned duty by it
or the certification authority for duties and functions done in good faith in pursuance
of this Law.
50.
The Ministry may, with the approval of the Government, issue a notification if necessary,
to clarify the definition of any technical terms of this Law.
51.
Notwithstanding anything contained in any existing law, the provisions
contained in this Law shall prevail over the provisions not in conformity with
or contradicting any provisions contained in this Law.
52.
In implementing the provisions of this Law:-
(a) the Ministry may, with
the approval of the Government, issue necessary rules and procedures;
(b) the Central Body and
the Ministry may issue necessary notifications, orders and directives and the
Control Board may issue necessary directives.
Sd/
-
Than
Shwe
Senior
General
Chairman
The State Peace and
Development Council
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