Are Electronic Signatures and Digital Signatures Legally Reliable and Recognized by Courts?

An article by Notarius

ARE E-SIGNATURES AND DIGITAL SIGNATURES LEGALLY RELIABLE?

We often wonder if digital and electronic signatures are legally reliable and recognized by courts. While seemingly simple, the answer to this question requires an understanding of a few different concepts.

Reliability of the Signature

To determine whether a signature is valid in law and recognized by courts, we must examine the signature’s reliability. A signature’s reliability is based on four fundamental attributes:

identity

To what extent can the parties
concerned be assured that the signer
is the person he or she claims to be?

Integrity

To what extent can the parties
concerned be assured that the
document has not been modified?

authenticity

Is all of the information that attests to
the signers’ identities and the
document’s integrity embedded
into the document?

LONGEVITY

To what extent can the parties
concerned be assured that the
document can be opened, read,
and authenticated for decades to come?

The Challenges

The following components must be assessed to determine whether an electronic signature is valid in law (unfortunately, there are NO shortcuts):

What type of document will the signature be used on? What process will be used? And what are the terms and conditions? For example, the terms and conditions could include a forum conveniens clause according to which the parties agree to the jurisdiction governing their contract. (A “jurisdiction” could be a state, province, country, or even Europe as a whole.)

Depending on the type of document used and the applicable jurisdiction, what laws govern electronic signatures?

Depending on the applicable jurisdiction, are there any specific statutory or regulatory rules mandating a certain type of signature or document that could directly impact whether an electronic signature is valid under the law? (For example, in the province of Quebec, there are only three legally valid forms of wills, and none of them is an electronic document signed only by the testator.)

In that jurisdiction and with the exception of any specific statutory or regulatory rules governing forms of signatures for the type of document under consideration, what is the default legal framework that applies to electronic signatures?

It is up to every organization that is considering using electronic signatures to conduct the four-step analysis described above for each type of document it wishes to use. As a starting point for this analysis, here are a few general points concerning the validity in law of electronic signatures.

In Canada, the United States, and Europe, the general legislative framework governing the validity of electronic signatures is based on the work of the United Nations Commission on International Trade Law (UNCITRAL) at the end of the 1990s. Based on this work, model laws were proposed and eventually adopted everywhere in Canada, the United States, and Europe. The same general principle applies in all jurisdictions:

The legal effects of an electronic document cannot be denied solely on the basis that it is an electronic document.

Authentic legal signatures, which courts accept as evidence that does not require corroborating evidence. It is normally the responsibility of the party claiming that the electronic signature is not valid to prove that such is the case;

Inauthentic legal signatures, which courts accept as prima facie evidence requiring corroborating evidence. It is normally the responsibility of the party claiming that the electronic signature is valid to prove that such is the case.

It is also possible to extract the following main guidelines concerning the validity of electronic signatures in Canada, the United States, and Europe:

In Canada, the validity of most electronic signatures is governed by provincial laws. To varying degrees, all of the provinces adopted the same model legislation on e-commerce from the Uniform Law Conference of Canada (ULCC) at the beginning of the 2000s. Notarius’ trusted digital signatures and electronic signatures surpass the provincial and Canadian federal requirements concerning their legal validity in e-commerce.

In the U.S., the use of electronic signatures has become an accepted practice since Congress adopted the Electronic Signatures in Global and National Commerce Act (ESIGN Act) in 2000. This law is based on a previous law, the Uniform Electronic Transactions Act (UETA). Forty-seven states have ratified UETA, while the states of New York, Washington, and Illinois have adopted similar laws. Notarius’ digital and trusted electronic signatures are fully compliant with U.S. legal requirements and guarantee a signer’s identity as well as the integrity, authenticity, and longevity of all electronically signed documents.

The European Union’s regulation on electronic identification authentication and trust services (eIDAS) is the law regulating electronic signatures in Europe. This law shares similarities with North American legislation. Notarius meets the requirements set out in Europe’s eIDAS regulation with regard to the issuing of certified electronic signatures as it conforms to standards ETSI EN 319 401, ETSI EN 319 411-1, and ETSI EN 319 411-2. Notarius’ eIDAS certificate (no. C EIDAS-122017-0CU00210) covers all of Notarius’ activities, both technical and administrative, for the development, operation, and support of digital signature products in its role as a trusted third party.

In short, digital signatures and trusted electronic signatures provide high-level legal reliability, and documents signed using these signatures are considered valid in law, subject to rare and specific legislative and regulatory exceptions that bar the use of all electronic or digital signatures.

Validity in courts

With regard to the four-step analysis described above, it is impossible to state with certainty that any form of signature will be universally accepted in all jurisdictions and for all types of documents. Notarius nevertheless maintains that all of its signatures would be deemed valid in all courts in Canada, the United States, and Europe if used in a context where no specific legislative or regulatory exception bars their use or prescribes a highly specific type of electronic signature.