In this blog, we answer some of the most frequently asked questions about electronic and digital signature laws and the legality of eSignatures so you can electronically sign with confidence.
One of the key concerns people have when switching to eSignatures is whether they have the same legal certainty as a paper and ink signature. Ensuring e-signed documents are legally enforceable in a court of law is critical, as no company wants to see its documents disputed.
Digital and electronic signature laws: Frequently asked questions
What makes an electronic signature legal?
Esignature laws vary from country to country. Understanding the different international document regulations for the country you and the other party are signing in is important.
In most cases, for an electronic signature to be legal you must be able to answer yes to the following questions:
- Does the signature identify the signer?
- Can the user make their signature mark on the document?
- Can the signer’s intention to sign be proven?
- Can you prove the signer was the only one who could have created the signature?
- Will any subsequent changes to the document invalidate the signature?
- Can the signature be verified many years into the future?
- Can the signature be verified independently of the solution provider?
- Is there a complete audit trail?
The main thing to be aware of with electronic signatures is proving the signer’s identity and their intent to sign, when they signed and if the document has been tampered with at any point. If you cannot prove these, then it is extremely difficult to prove the document’s validity in a court of law.
Are eSignatures, based on digital signature technology, legally enforceable?
Esignatures are legally distinct from digital signatures.
An eSignature can be as simple as a name typed in an electronic document, but digital signatures are often used in regulatory filings to implement eSignatures (so that they are cryptographically protected).
What is the validity of digital signatures?
There are different types of digital signature with varying levels of validity depending on their use. The eIDAS regulation is used across the EU but many other countries follow similar definitions.
Under eIDAS there are three digital signature levels:
- Basic- Esignatures cannot be denied legal effect and are recognised as admissible in legal proceedings
- Advanced- Allows for the unique ID and authentication of the signer and enables verification of the document’s integrity
- Qualified- These are the only type issued by a government-recognised and trusted Certificate Authority (CA) and the only eSignatures to automatically have the legal equivalence of a handwritten signature
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How do I authenticate my digital signature?
For a digital signature to be authenticated, you must receive a digital certificate from a trusted Certificate Authority.
These trusted third-party entities issue a unique digital identity after secure verification of the person’s identity. The process can be done remotely with a Qualified Signature Creation Device or a signing key.
In the case of Qualified Digital Signatures under the eIDAS regulation, there are a list of Qualified Trust Service Providers (QTSPs) that provide Digital Certificates for the creation of Qualified Electronic Signatures (QES).
Can legal documents be signed electronically?
Under eIDAS, Qualified Electronic Signatures have the same validity as an ink signature. It means that documents, such as conveyancing and contracts can be electronically signed with certainty. However, there are some documents such as wills that still require a handwritten ink signature.
Every country has different digital and electronic signature laws. They may differ on what documents can be signed electronically, so it’s important to check the local electronic signing laws in your country.