1976 South Carolina Code of Laws
Unannotated
Updated through the end of the 2003 Session

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This statutory database is current through the 2003 Regular Session of the South Carolina General Assembly. Changes to the statutes enacted by the 2004 General Assembly, which will convene in January 2004, will be incorporated as soon as possible. Some changes enacted by the 2004 General Assembly may take immediate effect. The State of South Carolina and the South Carolina Legislative Council make no warranty as to the accuracy of the data, and users rely on the data entirely at their own risk.

Title 26 - Notaries Public and Acknowledgements

CHAPTER 5.

ELECTRONIC COMMERCE ACT

ARTICLE 1.

TITLE, INTERPRETATION, AND DEFINITIONS

SECTION 26-5-10. Short title.

This chapter is known as the "South Carolina Electronic Commerce Act".

SECTION 26-5-20. Purposes of chapter.

The purposes of this chapter are to:

(1) facilitate and promote electronic commerce and online government by clarifying the legal status of electronic records and electronic signatures in the context of writing and signing requirements imposed by law;

(2) permit and encourage the continued expansion of electronic commerce and online government through the operation of free market forces rather than proscriptive legislation;

(3) promote public confidence in the validity, integrity, and reliability of electronic commerce and online government; and

(4) promote the development of the legal and business infrastructure necessary to support and encourage electronic commerce and online government.

(5) facilitate and promote interstate and international use of electronic commerce and online government.

SECTION 26-5-30. Definitions.

As used in this chapter:

(1) "Contract" means a contract for the sale of goods or services, for the sale or license of digital information, or for the lease of tangible personal property.

(2) "Electronic" means electrical, digital, magnetic, optical, electromagnetic, biometric, or any other technology that is similar to these technologies.

(3) "Electronic record" means a record generated, communicated, received, or stored by electronic means.

(4) "Electronic signature" means any identifier or authentication technique attached to or logically associated with an electronic record that is intended by the party using it to have the same force and effect as a manual signature.

(5) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(6) "Rule of law" means a statute, regulation, ordinance, common-law rule, court decision, or other law enacted, established, or promulgated by the State or any agency, commission, department, court, other authority, or political division or subdivision of the State and relating to transactions by public or private entities.

(7) "Security procedure" means a methodology or procedure for the purpose of:

(a) preventing access by unauthorized parties;

(b) verifying that an electronic record or an electronic signature is that of a specific party or created by a specific electronic point of origin; or

(c) detecting error or alteration in the communication, content, or storage of an electronic record since a specific point in time.

SECTION 26-5-40. Application of chapter to public and private entity activities; enforceability of electronically-recorded contracts.

Notwithstanding any other provision of law, the provisions of this chapter apply to records generated, stored, processed, communicated, or used for any purpose by or with:

(1) Public entity activity--public entities of the State, including state agencies, boards, commissions, or institutions, or local political subdivisions including cities, counties, school districts, or public service districts. Nothing in this section requires any public entity to use or permit the use of electronic records or electronic signatures.

(2) Private entity activity--private, commercial entities for transactions including contracts and recordkeeping. Nothing in this section requires any private entity to use or permit the use of electronic records or electronic signatures.

(3) Contracts--A contract between public and/or private entities is not unenforceable, nor inadmissable in evidence, on the sole ground that the contract is evidenced by an electronic record or that it has been signed with an electronic signature.

SECTION 26-5-50. Promulgation of regulations for local political subdivisions; model procedures; security of transactions.

(A) The South Carolina Budget and Control Board is authorized to promulgate regulations to coordinate, create, implement, and facilitate the use of common approaches and technical infrastructure, as appropriate, to enhance the utilization of electronic records, electronic signatures, and security procedures by and for local political subdivisions consenting to be governed by such authority and public entities of the State.

(B) The Secretary of State is authorized to develop, implement, and facilitate the use of model procedures for the use of electronic records, electronic signatures, and security procedures for all other purposes, including private commercial transactions and contracts. The Secretary of State is also authorized to promulgate methods, means, and standards for secure electronic transactions including administration by the Secretary of State and/or the licensing of third parties to serve in such capacity.

(C) No action in this section is required as a prerequisite to conduct business pursuant to Section 26-5-510 or Section 26-5-520.

ARTICLE 3.

ELECTRONIC SIGNATURES AND RECORDS GENERALLY

SECTION 26-5-310. Enforceability of electronic records.

A record may not be denied legal effect, validity, or enforceability solely because it is in the form of an electronic record or signature.

SECTION 26-5-320. Application of section to laws requiring written records; exceptions.

(A) An electronic record satisfies any rule of law requiring a record to be in writing or providing consequences if it is not in writing.

(B) This section does not apply:

(1) to the extent that its application would result in a construction of law that is clearly inconsistent with the manifest intent of the lawmaking body or repugnant to the context of the same rule of law. However, the mere requirement that information be "in writing", "written", "printed", "signed", or any other word that purports to specify or require a particular communication medium, is not by itself sufficient to establish such intent; or

(2) to any record that serves as a unique and transferable physical token of rights and obligations, including negotiable instruments and other instruments of title where possession of the instrument is deemed to confer title.

SECTION 26-5-330. Electronic signatures; manner of proving; exceptions.

(A) An electronic signature satisfies any rule of law requiring a signature or providing consequences if a document is not signed.

(B) An electronic record is signed as a matter of law if it contains a secure electronic signature. Otherwise, a signature may be proved in any manner, including by showing that a procedure existed by which a party must of necessity have executed a symbol in order to proceed further in the use or processing of information.

(C) This section does not apply:

(1) to the extent that its application would involve a construction of law that is clearly inconsistent with the manifest intent of the lawmaking body or repugnant to the context of the same rule of law. However, the mere requirement of a "signature" or that a record be "signed" is not by itself sufficient to establish such intent; or

(2) to any record that serves as a unique and transferable physical token of rights and obligations, including negotiable instruments and other instruments of title where possession of the instrument is deemed to confer title.

SECTION 26-5-340. Records required to be presented or retained in original form; requirements for electronic records.

If a rule of law requires a record to be presented or retained in its original form, or provides consequences for the record not being presented or retained in its original form, that requirement is met by an electronic record if there exists a reliable assurance that the information has remained complete and unaltered, apart from additional endorsements or changes that arise in the normal course of communication, storage, or display.

SECTION 26-5-350. Evidentiary admissibility of electronic records and signatures.

In any legal proceeding, an electronic record or electronic signature is not inadmissible in evidence under the Rules of Evidence on the sole ground that it is:

(1) an electronic record or electronic signature;

(2) not in its original form or is not an original; or

(3) recognized and approved pursuant to Section 26-5-50.

SECTION 26-5-360. Retention of electronic records; additional requirements allowed by federal and state agencies.

If a rule of law requires that a record be retained, that requirement is met by retaining an electronic record if it accurately reproduces the original record as it existed at the time in question and for so long as may be required by law. Nothing in this section precludes any federal or state agency from specifying additional requirements for the retention of records, either written or electronic, that are subject to that agency's jurisdiction.

SECTION 26-5-370. Reciprocal recognition of electronic signatures or records.

Electronic signatures or records from other jurisdictions having commensurate requirements as provided for in this chapter and which also grant reciprocal recognition to electronic signatures or records from this State must be afforded the same status, effect, validity, and enforceability as those recognized under this chapter.

ARTICLE 5.

SECURE ELECTRONIC RECORDS AND SIGNATURES

SECTION 26-5-510. Electronic signatures; requirements for deeming secure.

An electronic signature is deemed to be secure if:

(1) it is created by application of a security procedure that is commercially reasonable and agreed to by the parties;

(2) the electronic signature can be verified by use of a procedure that is recognized and approved pursuant to Section 26-5-50; or

(3) when not previously agreed to by the parties, the electronic signature is:

(a) unique to the party using it;

(b) capable of identifying such party;

(c) created in a manner or using a means under the sole control of the party using it; and

(d) linked to the electronic record to which it relates in a manner such that, if the record is changed, the electronic signature is invalidated.

SECTION 26-5-520. Electronic records; requirements for deeming secure.

An electronic record is deemed to be secure if:

(1) it is created by application of a security procedure that is commercially reasonable and agreed to by the parties;

(2) the electronic record can be verified by use of a procedure that is recognized and approved pursuant to Section 26-5-50; or

(3) the electronic record can be verified not to have been altered since a specified point in time.

SECTION 26-5-530. Resolutions of civil disputes; rebuttable presumptions regarding electronic signatures and records; burden of proof of authenticity.

(A) In resolving a civil dispute involving a secure electronic record, it is rebuttably presumed that the electronic record has not been altered since the specific point in time to which the secure status relates.

(B) In resolving a dispute involving a secure electronic signature, it is rebuttably presumed that the secure electronic signature:

(1) is the signature of the party to whom it correlates; and

(2) was affixed by that party with the intention of signing the electronic record.

(C) The effect of presumptions provided in this section is to place on the party challenging the integrity of a secure electronic record or challenging the genuineness of a secure electronic signature, both the burden of going forward with evidence to rebut the presumption and the burden of persuading the trier of fact that the nonexistence of the presumed fact is more probable than its existence.

(D) In the absence of a secure electronic record or a secure electronic signature, nothing in this chapter changes existing rules regarding legal or evidentiary rules regarding the burden of proving the authenticity and integrity of an electronic record or an electronic signature.

SECTION 26-5-540. Evidentiary challenges to status of secure electronic records and signatures.

The status of an electronic record or an electronic signature as secure may be challenged by evidence:

(1) indicating that the security procedure agreed to between the parties is not commercially reasonable or was not implemented in a trustworthy manner; or

(2) that a security procedure not agreed to by the parties was not trustworthy because it was not:

(a) unique to the party using it;

(b) capable of identifying such party;

(c) created in a manner or using a means under the sole control of the party using it; or

(d) linked to the electronic record to which it related in a manner such that, if the record was changed, the electronic signature would be invalidated.

ARTICLE 7.

APPLICABILITY OF COMPUTER CRIME ACT

SECTION 26-5-710. Computer Crime Act applicable to Chapter 5 of Title 26.

The Computer Crime Act, as contained in Chapter 16 of Title 16, is expressly made applicable to and incorporated in Chapter 5 of Title 26.





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