Electronic Signatures – Legal Aspects

The Electronic Signature Directive (1999/93/EC) was incorporated into UK law by the Electronic Communication Act 2000 (ECA) and the Electronic Signatures Regulations 2002 (ESR).

Electronic and digital signatures
The term “electronic signature” is used as a general description for any kind of signature created by an electronic device such as a computer. An electronic signature is defined as an electronic sound (recorded voice), symbol, or process (e.g., a procedure that conveys assent), attached to or logically associated with a electronic document, and executed by a person with the intent to sign this document. Even something as simple as a typed name can serve as an electronic signature. Thus, the authenticity of electronic signatures is hard to prove.

A digital signature is a particular type of electronic signature relying on a form of encryption (known as asymmetric cryptography) to authenticate messages. Usually, a so called Secure Signature-Creation Device (SSCD) is employed.

Digital signatures as court evidence
In general, any signature meeting the requirements to qualify as a digital signature, is admissible in court as evidence. In addition, certain types of electronic signature (for example those with particular security requirements around their use) may be regarded as being more reliable evidence than others. This is where certification service providers (CSPs) may have a role. CSPs issue certificates relating to electronic signatures which can be relevant to the admissibility of the signature and potentially also the reliability of that signature. However, it is for the courts to decide in each case whether an electronic signature has been correctly used and what weight should be attributed to it (based, for example, on the authentication or integrity of a message).

In 2001, the Law Commission published a paper examining the extent to which the statutory form requirements for “signature” that appear in many statutes is satisfied by electronic means, and concluded that digital signatures utilising a public key encryption system will satisfy a statutory signature requirement.

The use of electronic signatures is increasing and it is important to note that such a signature may not be relied on in court if the court is not satisfied that it is a digital signature that complies with the requirements of the EU directive or if it is deemed to be unreliable (for instance because it was misappropriated by someone without the authority to bind the company).

The material contained in this guide is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , March 2012
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Please contact:

Emmanuelle Ries - Partner

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