(i) identify the person in relation to the electronic data;
(ii) indicate the person's approval of the information contained in the electronic data; and
(iii) confirm that the information in the electronic data has not been altered;
(j) "encryption" means the conversion of data (plaintext) through the use of a cryptographic algorithm into a ciphertext using the appropriate key;
(k) "government information" means non-proprietary information, including data, held by the central government;
(l) "key" means a parameter used in conjunction with a cryptographic algorithm that determines its operation in such a way that a person with knowledge of the key can reproduce or reverse the operation, but a person without knowledge of the key cannot;
(m) "personal information" means any information, including data, about an identified or identifiable natural person;
(n) "recipient" means:
(i) a natural person; or
(ii) a juridical person to the extent provided for in the laws and regulations of each Party;
(o) "unsolicited commercial electronic message" means an electronic message which is sent for commercial or marketing purposes to an electronic address, without the consent of the recipient or despite the explicit rejection of the recipient, via a public telecommunications service.
Article 8.72. Customs Duties
1. The Parties shall not impose customs duties on electronic transmissions, including content transmitted electronically, between a person of a Party and a person of the other Party.
2. For greater certainty, paragraph 1 does not preclude a Party from imposing internal taxes, fees or other charges on electronic transmissions, provided that those taxes, fees or charges are imposed in a manner consistent with this Agreement.
Article 8.73. Source Code
1. A Party shall not require the transfer of, or access to, source code of software owned by a person of the other Party, or the transfer of, or access to, an algorithm expressed in that source code, as a condition for the import, distribution, sale or use of that software, or of products containing that software, in its territory.
2. This Article shall not preclude a regulatory body or judicial authority of a Party, or a Party with respect to a conformity assessment body, from requiring a person of the other Party:
(a) to preserve and make available (1) the source code of software, or an algorithm expressed in that source code, for an investigation, inspection, examination, enforcement action or judicial proceeding, subject to safeguards against unauthorised disclosure; or
(b) to transfer or provide access to the source code of software, or an algorithm expressed in that source code, for the purpose of imposing or enforcing a remedy granted in accordance with that Party's law following an investigation, inspection, examination, enforcement action or judicial proceedings.
3. This Article does not apply to:
(a) the voluntary transfer of, or granting of access to, source code, or an algorithm expressed in that source code, by a person of the other Party, such as in the context of a freely negotiated contract or government procurement; (2) or
(b) services supplied or activities performed in the exercise of governmental authority.
4. For greater certainty, this Article shall not prevent a Party from adopting or maintaining measures (1) inconsistent with paragraph 1, in accordance with:
(a) Article 1.5, Article 8.3 and Article 8.65; or
(b) Article II of the GPA, as incorporated by Article 10.1.
Article 8.74. Domestic Regulation
Each Party shall ensure that all its measures of general application affecting electronic commerce, including measures related to its collection of information, are administered in a reasonable, objective and impartial manner.
Article 8.75. Principle of No Prior Authorisation
1. The Parties will endeavour not to impose prior authorisation or any other requirement having equivalent effect on the provision of services by electronic means.
2. Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at services provided by electronic means, and to rules in the field of telecommunications.
Article 8.76. Conclusion of Contracts by Electronic Means
Unless otherwise provided for in its laws and regulations, a Party shall not adopt or maintain measures regulating electronic transactions that:
(a) deny the legal effect, validity or enforceability of a contract, solely on the grounds that it is concluded by electronic means; or
(b) otherwise create obstacles to the use of contracts concluded by electronic means.
Article 8.77. Electronic Authentication and Electronic Signature
1. Unless otherwise provided for in its laws and regulations, a Party shall not deny the legal effect or validity of an electronic signature or the authenticating data resulting from electronic authentication, solely on the grounds that it is in electronic form.
2. A Party shall not adopt or maintain measures regulating electronic authentication and electronic signature that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate electronic authentication methods for their transaction; or
(b) prevent parties to an electronic transaction from being able to prove to judicial or administrative authorities that the use of electronic authentication or an electronic signature in that transaction complies with the applicable legal requirements.
3. Notwithstanding paragraph 2, each Party may require that, for a particular category of transactions, the method of electronic authentication or electronic signature meets certain performance standards which shall be objective, transparent and non-discriminatory and shall only relate to the specific characteristics of the category of transactions concerned or is certified by an authority accredited in accordance with its laws and regulations.
4. The Parties shall encourage the use of interoperable electronic authentication and electronic signatures.
Article 8.78. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to its applicable policies, laws and regulations, each Party should adopt or maintain appropriate measures to ensure that a consumer (1) in its territory may:
(a) access and use services and applications of the consumer's choice available on the Internet, subject to reasonable, transparent and non-discriminatory network management;
(b) connect the devices of the consumer's choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of the consumer's Internet access service supplier.
Article 8.79. Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective consumer protection measures applicable to electronic commerce as well as measures conducive to the development of consumer confidence in electronic commerce.
2. Each Party shall adopt or maintain consumer protection laws and regulations to proscribe fraudulent and deceptive commercial activities that cause harm or potential harm to consumers engaged in online commercial activities.
3. The Parties recognise the importance of and shall promote cooperation between their respective competent authorities in charge of consumer protection on activities related to electronic commerce in order to enhance consumer protection and welfare. To this end, the Parties affirm that cooperation under paragraphs 4 to 6 of Article 11.7 includes cooperation with respect to online commercial activities.
Article 8.80. Personal Information Protection
1. The Parties recognise the economic and social benefits of protecting the personal information of users of electronic commerce and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection of the personal information of the users of electronic commerce. (1) In the development of its legal framework for the protection of personal information, each Party should take into account principles and guidelines of relevant international bodies.
3. Each Party shall endeavour to adopt non-discriminatory practices in protecting users of electronic commerce from personal information protection violations occurring within its jurisdiction.
4. Each Party shall publish information on the personal information protections it provides to users of electronic commerce, including how:
(a) individuals can pursue remedies; and
(b) business can comply with any legal requirements.
5. Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility between these different regimes. These mechanisms may include the recognition of regulatory outcomes, whether accorded autonomously or by mutual arrangement, or broader international frameworks. To this end, the Parties shall endeavour to exchange information on any such mechanisms applied in their jurisdictions and explore ways to extend these or other suitable arrangements to promote compatibility between them.
Article 8.81. Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages; or
(b) require the prior consent, as specified according to its laws and regulations, of recipients to receive commercial electronic messages.
2. Each Party shall ensure that commercial electronic messages are clearly identifiable as such, clearly disclose on whose behalf they are made, and contain the necessary information to enable recipients to request cessation free of charge and at any time.
3. Each Party shall provide recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraphs 1 and 2.
Article 8.82. Open Government Data
1. The Parties recognise that facilitating public access to and use of government information fosters economic and social development, competitiveness and innovation.
2. If a Party chooses to make government information available to the public, it shall endeavour to ensure that the information is in a machine-readable and open format and can be searched, retrieved, used, reused and redistributed.
3. The Parties shall endeavour to cooperate to identify ways in which each Party can expand access to and use of government information that the Party has made public, with a view to enhancing and generating business opportunities, especially for small and medium-sized enterprises.
Article 8.83. Cooperation on Electronic Commerce
1. The Parties shall, where appropriate, cooperate and participate actively in multilateral fora to promote the development of electronic commerce.
2. The Parties agree to maintain a dialogue on regulatory matters relating to electronic commerce with a view to sharing information and experience, as appropriate, including on related laws, regulations and their implementation, and best practices with respect to electronic commerce, in relation to, inter alia:
(a) consumer protection;
(b) personal information protection;
(c) cybersecurity;
(d) combatting unsolicited commercial electronic messages;
(e) electronic trust services;
(f) the treatment of digital products;
(g) the recognition of certificates of electronic signatures issued to the public;
(h) challenges for small and medium-sized enterprises in the use of electronic commerce;
(i) emerging technology, including artificial intelligence and the Internet of Things;
(j) the facilitation of cross-border certification services;
(k) intellectual property; and
(l) electronic government.
Article 8.84. Cross-border Transfer of Information by Electronic Means
1. A Party shall not prohibit or restrict the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.
2. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 1 to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on transfers of information greater than are required to achieve the objective.
3. This Article does not apply to:
(a) government procurement; or
(b) information held or processed by or on behalf of a Party, or measures by a Party related to that information, including measures related to its collection.
Article 8.85. Location of Computing Facilities
1. A Party shall not require a covered person to use or locate computing facilities in that Party's territory as a condition for conducting business in that territory.
2. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 1 that are necessary to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
3. This Article does not apply to:
(a) government procurement; or
(b) information held or processed by or on behalf of a Party, or measures by a Party related to that information, including measures related to its collection.
Article 8.86. Commercial Information and Communication Technology Products That Use Cryptography (1)
1. A Party shall not require a manufacturer or supplier of a commercial ICT product that uses cryptography, as a condition of the manufacture, sale, distribution, import or use of the commercial ICT product, to:
(a) transfer or provide access to any proprietary information relating to cryptography, including by disclosing a particular technology or production process or other information, for example, a private key or other secret parameter, algorithm specification or other design detail, to that Party or a person in the territory of that Party;
(b) partner or otherwise cooperate with a person in the territory of that Party in the development, manufacture, sale, distribution, import or use of the commercial ICT product; or
(c) use or integrate a particular cryptographic algorithm or cipher.
2. This Article shall not preclude a regulatory body or judicial authority of a Party from requiring a manufacturer or supplier of a commercial ICT product that uses cryptography:
(a) to preserve and make available (1) any information to which subparagraph 1(a) applies for an investigation, inspection, examination, enforcement action or judicial proceeding, subject to safeguards against unauthorised disclosure; or
(b) to transfer or provide access to any information to which subparagraph 1(a) applies for the purpose of imposing or enforcing a remedy granted in accordance with that Party's competition law following an investigation, inspection, examination, enforcement action or judicial proceedings.
3. Notwithstanding paragraph 4 of Article 8.70, this Article applies to commercial ICT products that use cryptography. (2) This Article does not apply to:
(a) a Party's law enforcement authorities requiring service suppliers using encryption to provide access to encrypted and unencrypted communications pursuant to that Party's legal procedures;
(b) the regulation of financial instruments;
(c) a requirement that a Party adopts or maintains relating to access to networks, including user devices, that are owned or controlled by that Party, including those of central banks;
(d) measures by a Party adopted or maintained pursuant to supervisory, investigatory or examination authority relating to financial service suppliers or financial markets; or
(e) the manufacture, sale, distribution, import or use of a commercial ICT product that uses cryptography by or for a Party.
Chapter 9. CAPITAL MOVEMENTS, PAYMENTS AND TRANSFERS AND TEMPORARY SAFEGUARD MEASURES
Article 9.1. Current Account
Without prejudice to other provisions of this Agreement, each Party shall allow, in freely convertible currency,(1) and in accordance with the Articles of Agreement of the International Monetary Fund, as applicable, any payments and transfers with regard to transactions on the current account of the balance of payments which fall within the scope of this Agreement.
Article 9.2. Capital Movements
1. Without prejudice to other provisions of this Agreement, each Party shall allow, with regard to transactions on the capital and financial account of the balance of payments, the free movement of capital for the purpose of liberalisation of investments and other transactions as provided for in Chapter 8.
2. The Parties shall consult each other with a view to facilitating the movement of capital between them in order to promote trade and investment.
Article 9.3. Application of Laws and Regulations Relating to Capital Movements, Payments or Transfers
1. Articles 9.1 and 9.2 shall not be construed as preventing a Party from applying its laws and regulations relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, or futures, options and other derivatives;
(c) financial reporting or record keeping of capital movements, payments or transfers where necessary to assist law enforcement or financial regulatory authorities;
(d) criminal or penal offences, or deceptive or fraudulent practices;
(e) ensuring compliance with orders or judgments in adjudicatory proceedings; or
( f) social security, public retirement or compulsory savings schemes.
2. The laws and regulations referred to in paragraph 1 shall not be applied in an inequitable, arbitrary or discriminatory manner, or otherwise constitute a disguised restriction on capital movements, payments or transfers.
Article 9.4. Temporary Safeguard Measures
1. A Party may adopt or maintain restrictive measures with regard to capital movements, payments or transfers:
(a) in the event of serious balance of payments or external financial difficulties, or threat thereof; (1) or
(b) if, in exceptional circumstances, capital movements, payments or transfers cause or threaten to cause serious macroeconomic difficulties related to monetary and exchange rate policies.
2. The measures referred to in paragraph 1 shall:
(a) be consistent with the Articles of Agreement of the International Monetary Fund, as applicable;
(b) not exceed those necessary to deal with the situations described in paragraph 1;
(c) be temporary and be phased out progressively as the situation described in paragraph 1 improves;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Party; and
(e) be non-discriminatory compared to third countries in like situations.
3. In the case of trade in goods, each Party may adopt restrictive measures pursuant to Article 2.20 for balance-of-payments purposes.
4. In the case of trade in services, each Party may adopt restrictive measures in order to safeguard its external financial position or balance of payments. Those measures shall be in accordance with the conditions set out in Article XII of GATS.
5. A Party maintaining or having adopted measures referred to in paragraphs 1 and 2 shall promptly notify the other Party of them.
6. If restrictions are adopted or maintained pursuant to this Article, the Parties shall promptly hold consultations in the Committee on Trade in Services, Investment Liberalisation and Electronic Commerce established pursuant to Article 23.3, unless consultations are held in other fora. The consultations shall assess the balance of payments or external financial difficulties or other macroeconomic difficulties that led to the respective measures, taking into account, inter alia, such factors as:
(a) the nature and extent of the difficulties;