Are there specific requirements for the validity of an electronic signature?
Technology (3rd edition)
The Law of Armenia on Electronic Documents and Electronic Signature regulates relations linked to application of electronic documents and electronic signatures. Nonetheless this Law does not regulate relations linked to the use of electronic version of a person’s manuscript signature and its copies, as well as the use of documents signed in such a way.
Under this Law electronic signature means obtained signature-creation data and a cryptographic data modification of the given electronic document presented in a unique sequence of symbols in electronic form, which is attached to or logically associated with an electronic document and which is used to identify the signatory, as well as to protect the electronic document from forgery and distortion.
In practice, the system of electronic documents of the governmental bodies allows accepting as an electronic signature this of which a natural person gains with his/her ID card (is issued by the Police of Armenia). And there is only one company is certified to create electronic signature and does it while issuance of ID card. Therefore, it is true to say that electronic signature in Armenia is one in ID card.
Yes, there are. According Law 126-02 of Electronic Commerce, Documents and Digital Signatures, a digital signature is a numeric value that is attached to any document and used through a mathematical process that allows its exclusive achievement from a user password. The Santo Domingo Chamber of Commerce is one of the entities certified by the INDOTEL to authorize the issuance of digital signatures. This new technology has transformed the traditional commercial practices. The requirements for the certificate of digital signature require the deposit of: (i) copy of the identification document of the applicant; (ii) copy of the RNC and Mercantile Registry documents is the applicant is an organization; (iii) original of the Request Form duly completed and signed; and (iv) (v) payment of the corresponding fee. There are two types of certificates (i) of digital personal signature and (ii) of digital governmental or corporate signature.
Law No. 15 of 2004 concerning e-signature (the “E-signature Law”) provides for the legal framework of the application of e-signatures in Egypt.
In order for the e-signature to be recognized and valid, one of the following requirements must be fulfilled:
- The signature shall be ascertained by an approved and valid digital certificate (also known as a public key certificate) issued by an authorized or accredited certificate service provider entity; or
- The validity of the e-signature shall be ascertained by the examination of the same, which shall be provided by ITIDA. Such examination shall include ascertaining of the following factors: (i) The validity of the digital certificate (“Public key certificate”) and its conformity with the e- signature creation data; (ii) The possibility of determining the content of the signed electronic document accurately; and (iii) The knowledge of the personality of the signer, whether in case of using his original name or an alias or a nickname.
Further, in addition to the above-mentioned legal requirements, ITIDA applies several other practical requirements, which all need to be fulfilled in order to establish and validate the e-signature mechanism.
With the REGULATION (EU) No 910/2014 (mostly known as eIDAS), the EU legislator offers to its members and to the internal market trustworthiness in electronic transactions, by providing a common foundation for secure electronic interaction between citizens, businesses and public authorities. Electronic solutions, such as as digital signatures, get a legal meaning through eIDAS.
An electronic signature intends to provide a secure and accurate identification method for transaction partners and third persons. Not every digital signature can be considered as an electronic signature under the eiDAS. An electronic signature provides the same legal standing as a handwritten signature as long as it adheres to the requirements of the eIDAS. Therefore, it is important to keep in mind that not every electronically given signature is a qualified as an electronic signature. For example, signatures which are given on a screen with a pen or finger are not handwritten signatures and also not a qualified electronic signatures equal of a handwritten one, according to eIDAS. Digital signatures on a screen do not have any certificates and it is almost impossible to link a signature with a signer.
An electronic signature may have several levels of security. According to eIDAS, the strongest electronic signature is a qualified electronic signature which is equal to a handwritten signature. This means that it does not matter if the parties agree to sign a document in a traditional way by a pen on a paper, or will use some digital solution which fulfils the requirements of a qualified electronic signature, according to eIDAS.
The biggest advantage of an electronic signature is that an electronic signature enables an infinite number of copies of equal legal force to be made from a digitally signed document.
The most used type of an electronic signature in Estonia is created by the DigiDoc4 program that is installed into a user’s computer along with the ID-card software, which can be used also by an e-resident. Estonia is the first country to offer e-Residency, a government-issued digital identity and status that provides access to Estonia’s transparent digital business environment (inter alia to use electronic signatures).
According to the Civil Code provisions that implement EU legislation governing this matter (latterly, EU regulation 910/2014 of 23 July 2014.), an electronic signature is considered as a ‘signature,’ that is, as effectively identifying the author of an act and showing his consent, only when it results from a reliable identification process that guarantees its connection with the act. “Qualified” electronic signatures are deemed by statute to offer such reliability and, consequently, to have the same legal effects as a handwritten signature, because they fulfil certain requirements that are set out in regulations.
These requirements include the use of a qualified certificate which must be delivered to the signatory in person, as well as other requirements that, in practice, are seldom fully satisfied. Accordingly, so called ‘electronic signatures’ in current use on the market may most often not be considered as ‘qualified electronic signatures’ under the law. This means that, when challenged before the courts, their users will have to demonstrate their probative value.
An electronic signature is defined within the PRC as the data that is incorporated in or attached to a data message in electronic form and is used to identify a signatory’s identity and to indicate the signatory’s acknowledgement of the contents contained thereof. An electronic signature must meet the following requirements in order to be valid under PRC law:
- at the time that the data was used to make the electronic signature, it was owned exclusively by the electronic signatory;
- at the time of signing, the data used for the electronic signature was controlled exclusively by the electronic signatory;
- any alteration to the electronic signature after signing can be determined; and
- any alteration to the content and form of the data message after signing can be determined.
A valid electronic signature has the same legal effect as a seal or hand-written signature.
In general, the issue of electronic signatures is regulated under the Electronic Signature Law, 2001 (the 'Electronic Signature Law'). Under the Electronic Signature Law, an electronic signature will not be deemed inadmissible solely because it is an electronic signature.
However, with respect to document that is legally required to be signed, an electronic signature will be sufficient and valid when the electronic message is signed with (a) a Certified Electronic Signature ; or (b) other electronic signature, provided the type of signature used is adequate to fulfill, to a sufficient degree of certainty, the purposes of such requirement (this is a vague standard that has not yet been examined by the Israeli courts). At this stage, the only documents that cannot be signed by some form of electronic signature are certain inheritance-related documents. In addition, we note that most government agencies will not accept electronically signed documents, and documents that are required to be filed with various registries and governmental authorities are still required to be manually signed.
 An "electronic signature" is defined under the Electronic Signature Law as "a signature that is electronic data or an electronic sign that is attached to or associated with an electronic message". An "electronic message" is defined under the Electronic Signature Law as "information produced, sent, received or stored by electronic or optical means, which is visualized, read, heard or retrieved by aforesaid means".
 An electronic signature will be "certified" if (a) It complies with the requirements for a "secure electronic signature"; and (b) The signing device used to produce it has been verified by a registered certification authority, namely an authority that issued electronic certificates confirming that a certain signing device belongs to a certain person, and is registered in a registry existing under the Electronic Signature Law. An electronic signature will be "secure" if it complies with the following requirements: (a) It is unique to the owner of the signing device (a signing device is "unique software, a unique object or unique information required for producing a secure electronic signature"); (b) It allows apparent identification of the owner of the signing device; (c) It has been created using a signing device that is under the sole control of the owner of the signing device; and (d) It allows detection of any change to the electronic message subsequent signing.
Yes. The electronic signature systems and their requirements are regulated under Legislative Decree no. 82/2005 (“Code for the Digital Administration”), and the technical rules attached thereof.
Such rules, consistently with Regulation (EU) no. 910/2014 (the “eIDAS Regulation”), identifies different types of electronic signature, according to their technical features and related legal effects.
It is possible to identify:
i) the “simple” electronic signature, i.e. data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign; no technical requirement is established, and the judge will assess on a case-by-case basis the legal impact and the evidentiary effects of the signature; ii) the advanced / qualified / digital electronic signatures, whose technical requirements ensure, in particular, a unique connection of the signature to the signatory and the integrity of the signed document. An electronic document signed with such systems fulfils the written form requirement and provides full proof, until an action of falsehood is granted.
As for a handwritten signature, if a document is signed or sealed by the principal or his or her agent, such document will be presumed to be authentically created under the Code of Civil Procedure. Likewise, in order for a digital record with an electronic signature by the principal to be presumed to be created authentically, such electronic signature must meet the requirements set forth under the Act on Electronic Signatures and Certification Business. There are no other specific requirements for the validity of an electronic signature.
Save for transactions involving powers of attorney, wills, and codicils, trusts and other negotiable instruments, the Electronic Commerce Act 2006 (“ECA”) applies to commercial transactions conducted through electronic means.
Section 9(1) of the ECA provides that “Where any law requires a signature of a person on a document, the requirement of the law is fulfilled, if the document is in the form of an electronic message, by an electronic signature which—
(a) is attached to or is logically associated with the electronic message;
(b) adequately identifies the person and adequately indicates the person's approval of the information to which the signature relates; and
(c) is as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.”
Section 9(2) of the ECA further states that “For the purposes of paragraph (1)(c), an electronic signature is as reliable as is appropriate if—
(a) the means of creating the electronic signature is linked to and under the control of that person only;
(b) any alteration made to the electronic signature after the time of signing is detectable; and
(c) any alteration made to that document after the time of signing is detectable.”
The ECA further provides that the Digital Signature Act 1997 (“DSA”) continues to apply to any digital signature used as an electronic signature in any commercial transaction. A digital signature is defined under the DSA as “a transformation of a message using an asymmetric cryptosystem such that a person having the initial message and the signer’s public key can accurately determine (a) whether the transformation was created using the private key that corresponds to the signer’s public key and (b) whether the message had been altered since the transformation was made.”
Section 62(1) of the DSA specifically prescribes that:
“Where a rule of law requires a signature or provides for certain consequences in the absence of a signature, that rule shall be satisfied by a digital signature where—
(a) that digital signature is verified by reference to the public key listed in a valid certificate issued by a licensed certification authority;
(b) that digital signature was affixed by the signer with the intention of signing the message; and
(c) the recipient has no knowledge or notice that the signer—
(i) has breached a duty as a subscriber; or
(ii) does not rightfully hold the private key used to affix the digital signature.”
Section 66 of the DSA also provides that a certificate issued by a licensed certification authority shall be an acknowledgment of a digital signature verified by reference to the public key listed in the certificate if that digital signature is (a) verifiable by that certificate; and (b) affixed when that certification was valid.
Regulation (EU) 910/2014 (known as the eIDAS Regulation) regulates the use of electronic signatures and related trust services for electronic transactions in the internal market. The eIDAS Regulation has direct effect in Malta and sets out the validity requirements for electronic signatures, and the Maltese legislator has taken the approach of retaining the text of the Regulation as directly effective in Malta, rather than replicate those requirements into a specific Maltese statute. It is relevant to note that the Electronic Commerce Act (Chapter 426, Laws of Malta), was duly amended by Act XXX of 2016 in the light of the eIDAS Regulations, removing from the Maltese statute book concepts that were conflicting with the eIDAS Regulation.
Under the Regulation, a 'qualified electronic signature' has the same effect as a handwritten signature (Article 25(2)) as long as it was created by a qualified electronic signature device and based on a qualified certificate for electronic signatures (Article 3(12)). The validity requirements for a qualified electronic signature are set out in Article 26 and Annexes I and II of the Electronic Identification Regulation and include the following: the signature must be uniquely linked to the signatory (Article 26(a)), the qualified electronic signature creation device must have appropriate technical and procedural measures to ensure that the confidentiality of the signature is assured (Paragraph 1(a), Annex II) and the qualified certificate for electronic signatures must clearly indicate the name or pseudonym of the signatory (Paragraph (d), Annex I).
The Contract and Commercial Law Act 2017 sets out specific rules regarding the validity of electronic signatures in instances where the signature is required by law. In these circumstances, the law generally recognises an electronic signature as valid if it adequately identifies the signatory, adequately indicates the signatory's approval of the information to which the signature relates and is appropriately reliable given the purpose for which, and the circumstances in which, the signature is required. If the legal requirement for a signature relates to information legally required to be given to a person, the recipient of that information must consent to receiving an electronic signature for such signature to be valid. The Act also contains a presumption as to the reliability of an electronic signature, essentially being a description of an effective digital signature.
There are some signatures required under law for which an electronic signature will be not valid, such as affidavits, statutory declarations, wills or other testamentary instruments.
Where the signature is not required by law, there are no specific requirements for a valid electronic signature, however it is good practice to nonetheless apply the statutory standard described above.
German requirements on electronic signatures are laid down in the Regulation on Electronic Identification and Trust Services (eIDAS) which replaced the German Signature Act (SigG) in July 2017. The new regulation contains binding European-wide rules in the areas of electronic identification and electronic trust services. The eIDAS Regulation introduced the so called “electronic seals”. Technically, these are similar to the electronic signatures. The main difference is the assignment to a legal rather than a natural person. While electronic signatures can be used to sign a declaration of intent, the electronic seal of an institution serves as proof of origin: It can be used wherever a personal signature is not necessary, but proof of authenticity is desired, e.g. in the case of official decisions, certificates and account statements.
For the validity of electronic signatures in general (for example in e-mails or PDF documents), there are no specific requirements. However, for legal acts which require written form according to section 126 German Civil Code (BGB), this form requirement can (where not excluded in the law) only be replaced by a qualified electronic signature. A qualified electronic signature is only given in cases where an certified identification unit was used when creating the signature (which is rarely the case). Electronic documents only have the same value of proof as documents which were signed by hand if a qualified electronic signature is used in the document (section 371a German Code of Civil Procedure.
 Verordnung über elektronische Identifizierung und Vertrauensdienste
 Bürgerliches Gesetzbuch
Pursuant to Law 11/2008 and GR 82/2012, the minimum requirements for an electronic signature to be considered valid are as follows:
1. the data creation of the electronic signature is relevant to the signatory;
2. the data creation of the electronic signature during the signing is only within the possession of the signatory;
3. all changes to the electronic signature that occur after signing can be known;
4. all changes to electronic information related to the electronic signature after signing can be known;
5. there are certain methods used to identify the signatory; and
6. there are certain methods to show
The primary legislation relating to electronic and digital signatures in Pakistan, is the Electronic Transactions Ordinance 2002 (the “ETO”). The relevant applicable laws in this regard are technology neutral.
ETO inter alia provides that, the requirement under any law for affixation of signatures shall be deemed satisfied where electronic signatures or advanced electronic signature are applied. An electronic signature may be proved in any manner, in order to verify that the electronic document is of the person that has executed it with the intention and for the purpose of verifying its authenticity or integrity or both. In any proceedings, involving an advanced electronic signature, it shall be presumed unless evidence to contrary is adduced, that:
a) the electronic document is affixed with an advanced electronic signature, as is the subject-matter of or identified in a valid accreditation certificate is authentic and has integrity; or
b) the advanced electronic signature is the signature of the person to whom it correlates, the advanced electronic signature was affixed by that person with the intention of signing or approving the electronic document and the electronic document has not been altered since that point in time
The term “electronic signature” has been defined in the ETO as “any letters, numbers, symbols, images, characters or any combination thereof in electronic form, applied to, incorporated in or associated with an electronic document, with the intention of authenticating or approving the same, in order to establish authenticity or integrity, or both”.
The term ‘advanced electronic signature’ has been defined in the ETO as “an electronic signature which is either:
(i) unique to the person signing it, capable of identifying such person, created in a manner or using a means under the sole control of the person using it, and attached to the electronic document to which it relates in a manner that any subsequent change in the electronic document is detectable; or
(ii) provided by an accredited certification service provider and accredited by the Certification Council as being capable of establishing authenticity and integrity of an electronic document”.
The applicable laws in Pakistan do not provide for any specific transactions that require one type of electronic signature over another. However, it provides that a government entity/body may accept inter alia the filing of documents, or creation or retention of such documents in the form of electronic documents, and issue permits, certificate, license or approval in the form of electronic document(s).
In instances where the government entity/body decides to undertake any of the foregoing, it may specify:
a) the manner and format in which such electronic documents shall be filed, created, retained or issued;
b) when such electronic document(s) has to be signed, the type of electronic signature, advanced electronic signature or a security procedure required;
c) the manner and format in which such signature shall be affixed to the electronic document, and the identity of or criteria that shall be met by any certification service provider used by the person filing the document;
d) control process and procedures as appropriate to ensure adequate integrity, security and confidentiality of electronic documents, procurement, transactions or payments; and
e) any other required attributes for electronic documents or payments that are currently specified for corresponding paper documents.
With regards to evidentiary value of the electronic or advanced electronic signature, please note that both electronic and advanced electronic signatures are legally recognized in Pakistan and bear the same evidentiary value in the court of law.
Where an electronic document is alleged to be signed or to have been generated wholly or in part by any person through the use of an information system, and where such allegation is denied, the application of a security procedure to the signature or the electronic document must be proved.
It may be noted that however, certain types of transactions are specifically prohibited from the use of electronic signatures. The provisions of ETO shall not apply to the following:
(i) a negotiable instrument (a promissory note, bill of exchange or cheque payable either, to order or to bearer) as defined under the Negotiable Instruments Act, 1881;
(ii) a power-of-attorney under the Powers of Attorney Act, 1881;
(iii) a trust (an obligation annexed to the ownership of property, and rising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner) as defined under the Trust Act 1882, but excluding constructive, implied and resulting trusts;
(iv) a will or any form of testamentary disposition under any law for the time being in force; and
(v) a contract for sale or conveyance of immovable property or any interest in such property.
Article 4 of Law no. 455/2001 on electronic signature defines the electronic signature (e-signature) and the extended e-signature. The latter is the equivalent of the advanced e-signature in the Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market (”eIDAS Regulation”) and it must fulfil four conditions in order to be valid: it is uniquely linked to the signatory; it ensures the identification of the signatory; it is created using electronic signature creation data that the signatory can use under his sole control; it is linked to the data signed therewith in such a way that any subsequent change in the data is identifiable. Under Article 5 of Law 455/2001, an extended e-signature ensures the validity of an electronic document if it is based on a qualified certificate and generated by a secure signature creation device (similar to a qualified electronic signature under the eIDAS Regulation). Simultaneously, Article 6 recognizes the validity between the parties of an electronic document if e-signatures were used, provided the e-signatures are recognized by the parties. Moreover, in the instance where one of the parties does not recognize the e-signature, the court must have it verified by an expert.
Under the Electronic Signature Act (“ESA”), there are two types of electronic signatures: (1) a certified electronic signature and (2) a non-certified electronic signature.
A certified electronic signature is one that is based on a public key certificate (i.e., a certificate that is issued by a licensed certification authority) and satisfies the following requirements: (a) the key for creating the electronic signature must be held and known only by the subscriber, (b) the subscriber must control/manage the key at the time of signing, (c) it must be possible to determine whether there has been any change to the electronic signature since the electronic signature was provided, and (d) it must be possible to determine whether there has been any change to the electronic document since the electronic signature was provided. A non-certified signature is any electronic signature other than a certified electronic signature.
The legal effect of a certified electronic signature and a non-certified electronic signature is different under the ESA, although both are considered valid.
A non-certified electronic signature, as long as it was provided by the signor, will have the effect of a signor’s signature, signature and seal, or name and seal (collectively, “Signature or Seal”) as agreed between the contracting parties.
That said, if a person’s Signature or Seal must be affixed to a document under another applicable law or regulation, such requirement is deemed to have been satisfied only if a certified electronic signature is placed on an electronic document.
Currently, the Spanish E-signature regulatory framework is composed by: (i) EU Regulation Number 910/2014 on electronic identification and trust services for electronic transactions in the internal market ("eIDAS Regulation") and (ii) Spanish Law 59/2003 on Electronic Signatures ("E-Signature Act"). Even though the E-Signature Act has not been formally repealed yet, most doctrine considers it applicable to any matters not regulated by the eIDAS Regulation and/or that do not contradict the provisions of the eIDAS Regulation.
In light of the above, there are three types of e-signatures:
- Simple electronic signature, that is data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.
- Advanced electronic signature, that is an electronic signature which meets several legal requirements, for example, is uniquely linked to the signatory or capable of identifying the signatory.
- Qualified electronic signature, that is an electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures. Qualified e-signatures must be validated through the fulfilment of several requirements according to the law.
The above types of e-signature must comply with different requirements. In general, electronic contracts will be binding, whatever the form under which they have entered into, provided that they comply with the contract requirements under Spanish law, which are: consent; a certain object; and cause of the obligation.
Most transactions do not require e-signatures. In principle, there are no limitations applicable to the use of e-signatures but only a qualified electronic signature satisfies the legal requirements of a signature in the same manner as a handwritten signature.
This said, in April 2018 a Spanish draft bill regulating certain aspects of "Trust Electronics Services" was issued and this is expected to formally repeal the E-Signature Act. This new law will develop certain aspects of Trust Electronic Services not covered by the eIDAS Regulation and so, once in effect, the Spanish E-signature regulatory framework will be composed of: (i) the eIDAS Regulation (Advance E-electronic signatures will be mostly regulated by this EU Regulation) and (ii) the new law on certain aspects of "Trust Electronics Services".
The general requirements for electronic signatures are set out in the eIDAS Regulation (EU 910/2014) and the Act on Supplementary Regulations to the eIDAS Regulation (Sw. Lag med kompletterande bestämmelser till EU:s förordning om elektronisk identifiering). Detailed provisions regarding the requirements are however not included in the aforementioned documents. Instead, the Commission has the authority to further specify the standards required.
An electronic signature can be created in two ways.
- Either directly, with the help of an electronic certificate that connects validation data for an electronic signature to a physical person, confirming at least the name or pseudonym of the person, or
- Indirectly, in the sense that the user proves her/his identity so that a special signature certificate can be delivered by a third-party service and then used to produce the electronic signature.
In eIDAS, there are three levels of security relating to electronic signatures. These are: standard electronic signatures, advanced electronic signatures (AdES), and qualified electronic signatures (QES). Standard electronic signatures have the lowest level of trust, and can e.g. be in the shape of a scanned handwritten signature. A QES has the highest level of trust. It is the only type of signature that has the same legal value as a handwritten signature. For an electronic signature to become a QES, it requires that the signatory uses a certificate based digital ID that has been issued by a Trust Service Provider (TSP), together with a qualified signature creating device (QSCD). The QSCD can be in the shape of a smart card, a USB token or an application that creates a disposable password.
Different levels of security are needed depending on what the signatory wants to do.
According to Articles 4 and 9 of the Electronic Signatures Act (“ESAM”), unless there is a law, regulation, or public announcement made by the central competent authority specifically excluding the use of electronic records or electronic signatures, it is legally permitted to use electronic records or electronic signatures on the relevant documents as long as the counterparty’s consent has been obtained. On the other hand, where a law or regulation stipulates that a document shall be made in writing, it is also legally permitted for such document to be in the form of an electronic record, provided that (i) the content of such document can be completely stored and presented for further reference; and (ii) the counterparty’s consent has been obtained.
Yes. There are some restrictions and requirements as to the electronic signature, in order to have a valid electronic signature under the E-signature Law. In order to qualify as a secured electronic signature under the E-signature Law, an electronic signature should (i) be uniquely linked to the signatory, (ii) be created through means that the signatory can maintain under his sole control, (iii) be capable of identifying the signatory, (iv) enable determination of whether there are any changes to the electronic data signed by electronic signature afterwards.
In principle there are no restrictions or requirements on the use of valid electronic/digital signatures in Turkey, since an electronic signature has the same legal effect as a handwritten signature under Turkish laws. In this regard agreements may be signed electronically by using an electronic signature certified by (i) an electronic certificate service provider established in Turkey or (ii) an electronic certificate service provider established outside Turkey but whose certificates are accepted by an electronic certificate service provider established in Turkey.
On the other hand electronic signature may not be used in the legal transactions, where the law stipulates official form requirements or special formal procedures for, and the agreements for guarantees. For instance, pursuant to Article 1526 of the Turkish Commercial Code, commercial deeds such as bills of exchange, bonds, checks, warrants and commercial bills may not be executed through electronic signature. Furthermore transactions on these commercial deeds such as acceptance, surety and endorsement may not also be made by using electronic signature.
EU Regulation 910/2014 ("Electronic Identification Regulation"), which has direct effect in the UK, sets out the validity requirements for electronic signatures. Under the Electronic Identification Regulation, a 'qualified electronic signature' has the same effect as a handwritten signature (Article 25(2)) as long as it was created by a qualified electronic signature device and based on a qualified certificate for electronic signatures (Article 3(12)).
The validity requirements for a qualified electronic signature are set out in Article 26 and Annexes I and II of the Electronic Identification Regulation and include the following: the signature must be uniquely linked to the signatory (Article 26(a)), the signatory must be identifiable (Article 26(b)), the qualified electronic signature creation device must have appropriate technical and procedural measures to ensure that the confidentiality of the signature is assured (Paragraph 1(a), Annex II) and the qualified certificate for electronic signatures must clearly indicate the name or pseudonym of the signatory (Paragraph (d), Annex I).
In respect of electronic signatures at a national level, the UK takes a relatively progressive approach in respect of electronic signatures as confirmed by the guidance note published by The Law Society Company Law Committee and The City of London Law Society Law and Financial Law Committees (found here: https://www.lawsociety.org.uk/support-services/advice/practice-notes/execution-of-a-document-using-an-electronic-signature/). However, there is still some uncertainty as to whether electronic signatures will be sufficient for the valid execution and/or filing of certain documents subject to statutory requirements (e.g. guarantees, or certain documents that require registration at HM Land Registry).
Yes, the federal Electronic Signatures in Global and National Commerce Act ("E-SIGN") and the state implementations of the Uniform Electronic Transactions Act ("UETA") both address the use of electronic signatures. Both statutes provide that a signature, record or contract cannot be denied eﬀectiveness solely because it is signed in electronic form. Notably, the statutes exclude certain documents and instruments from their scope, including wills, adoption and divorce records, court documents, and documents (other than contracts) governed by the Uniform Commercial Code (which would include negotiable instruments and security agreement).
In order for electronic signatures to be valid, the parties must consent to doing business electronically. Before a consumer can consent to use of an electronic signature, E-SIGN provides a list of disclosure requirements that must be met, including the records covered by the consent, how to withdraw consent, and how to update contact information to contact the consumer electronically.
The Electronic Transactions Act 1999 (Cth) sets out the validity requirements for electronic signatures in Australia. Under the Commonwealth Act, an electronic signature has the same effect as a handwritten signature where the following criteria are satisfied:
(a) the recipient has consented to receiving information electronically;
(b) the method of signing identifies the person sending the information and indicates that the person approves of the content of the electronic document signed; and
(c) having regard to all the circumstances of the transaction, the method of signing is as reliable as appropriate for the purposes for which the electronic document was generated. Alternatively, the identity of the signor and their approval of the content must be self-evident within the document or be otherwise available in some manner.
Each State and Territory has also introduced legislation which set out the above validity requirements in the same or similar terms.