The
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.
(
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;
(1) 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, Secretary 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
(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 acknowledgement 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 convition 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 cf
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.
(
Senior General
Chairman
The State Peace and Development Council