The status of electronic signatures in The Bahamas

The Bahamas, like many other countries, saw a marked increase in the use of technology and e-commerce services as a result of the Covid-19 pandemic. While many Bahamians withstood lockdowns and prolonged periods of mandatory social distancing, technology provided a mechanism through which transactions could be conducted (and contracts could be executed) without the parties having to be physically present.

Electronic signatures

Electronic signatures are legally recognised and enforceable in The Bahamas (subject to certain exceptions) pursuant to s9 of the Electronic Communications and Transactions Act, 2003 (ECTA), which states that where the law requires the signature of a person, such a requirement is met in relation to an electronic communication if a method is used to identify that person and to indicate that the person intended to sign or otherwise adopt the information in the electronic communication. Electronic signatures are further defined in s2 ECTA as ‘any letters, characters, numbers, sound, process or symbols in electronic form attached to, or logically associated with information that is used by a signatory to indicate his intention to be bound by the content of that information.’


Understandably, however, there are exceptions to the use of electronic signatures under Bahamian law. They are expressly forbidden in the following circumstances:

  • The creation, execution, amendment, variation or revocation of a will or testamentary instrument or a trust;
  • The conveyance of real property or the transfer of any interest in real property;
  • Court orders or notices (or official court documents required to be executed in connection with court proceedings); and
  • Enduring powers of attorney to the extent that they concern the financial affairs or personal care of an individual.

Electronic execution of deeds

An important development in this area emerged in December 2020 with the enactment of the Property (Execution of Deeds and Documents) Act, 2020 (PEDD). PEDD introduced important provisions in relation to the execution of deeds and documents – namely, providing clear guidelines on the requirements associated with validly executing a deed now that the Act has removed the former requirement of having a seal affixed to the same in order for it to be legally recognised as a deed.

As regards the manner of execution of deeds and documents, PEDD provides that a deed may take the form of an ‘electronic communication’ as defined under s2 ECTA – that is, information which is communicated, processed, recorded, displayed, created, stored, generated, received or transmitted by electronic means. Section 3(4) PEDD further states that if a deed is validly executed in accordance with subsection (1), an instrument executed as a deed may be signed by an individual in any manner contemplated by the parties, including by way of electronically attaching the individual’s signature on a signature page (whether or not the deed is at the time in final form) by, or at the direction, or on behalf of, the individual or otherwise with the individual’s express or implied authority. Section 3(6) PEDD further provides that, a ‘sign’ or ‘signature’, in relation to a deed means the individual’s electronic signature in accordance with s9 ECTA where the deed is in the form of and recorded as an electronic communication.

Autonomy, jurisdiction and capacity

Electronic contracts are an integral part of online transactions. When a business entity intends to transact with another party, it may opt to give customers the ability to electronically apply their signatures to various kinds of agreement. Under Bahamian law, however, there are some important points that need to be considered before taking advantage of this facility.

This is to ensure that the use of technology and the electronic signature itself are compliant with the provisions of ECTA and any other relevant Act.

With regard to the autonomy of parties, ECTA unequivocally states that nothing in the Act shall require any person to use or accept electronic communications, electronic signatures, or electronic contracts. Section 5 ECTA also provides that nothing in the Act shall prohibit any person from engaging in an electronic transaction by establishing reasonable requirements about the manner in which electronic communications, electronic signatures or electronic forms of documents may be accepted. This flexibility allows business entities (who are typically data controllers under the Bahamian Data Protection (Privacy of Personal Information) Act, 2003 (DPA)) to utilise the plethora of applications now available to businesses to digitally conduct transactions and retain records of the same.

The governing law of an electronic contract should also be clearly stated so as to eliminate any doubt over jurisdiction should a dispute arise over the validity of the contract. It is not unusual for parties in entirely different jurisdictions to conduct business with each other online via an application which can be used to upload documents and execute the same as a matter of convenience. Careful attention must be paid to the terms and conditions of such applications to ensure one fully understands where (geographically) these documents will be stored in the cloud.

As no data is completely safe from being breached, leaked, or stolen, it is important to consider the jurisdictional consequences if such an event should occur. If, for example, a digital copy of an electronic contract is stored in the cloud (on servers outside of The Bahamas) and contains personally identifiable and/or sensitive data, the party/parties should ideally be made aware of this and be asked to consent to the same.

Future considerations

It will be interesting to see how the law on electronic signatures evolves in the coming years alongside the rapid advancement of technology and verification methods. Verification methods will continue to develop technologically, and traditional views on ‘wet ink signatures’ may soon become obsolete as many industries undergo digital transformation and as expressions of identity expand. In recent times there have been calls to legislatively provide for the electronic execution of wills and also to bring biometric data under the umbrella of ‘sensitive personal data’ in the DPA. Biometric data, in the future, could very well allow for a ‘signature’ in the digitised form of one’s fingerprint, voice or iris pattern. While these verification methods are not yet mainstream in relation to major transactions, they represent emerging trends in e-commerce that are to be welcomed and encouraged even though their full recognition and use would require significant amendments to ECTA and DPA. Such amendments would also have to take care to ensure privacy and to guard against fraudulent or other illicit use of the new verification methods.