Will Electronic Signatures Hold up in Court

Prac­ti­tio­ners need to weigh the con­ve­ni­ence of elec­tro­nic signa­tures against the­se poten­ti­al pro­blems, espe­ci­al­ly for lar­ge tran­sac­tions that could give rise to liti­ga­ti­on. The­se are just a few examp­les of elec­tro­nic signa­tures. The type of signa­tu­re and the type of coll­ec­tion vary depen­ding on the signa­tu­re request. Bio­me­tric authen­ti­ca­ti­on iden­ti­fies indi­vi­du­als based on their intrin­sic phy­si­cal cha­rac­te­ristics. Right­Si­gna­tu­re, for exam­p­le, has pro­prie­ta­ry bio­me­tric authen­ti­ca­ti­on tech­no­lo­gy that cap­tures uni­que cha­rac­te­ristics rela­ted to the speed and timing of a person‘s signa­tu­re. This type of data is repre­sen­ta­ti­ve of the phy­si­cal move­ments of a given per­son and con­sti­tu­tes pro­of of the iden­ti­ty and inten­ti­on of the signa­to­ry when one of them is ques­tio­ned in court. While ESIGN covers fede­ral law, the Uni­form Elec­tro­nic Busi­ness Act (UETA) of 1999 appli­es to elec­tro­nic signa­tures in sta­te law and has been adopted by near­ly all sta­tes. Simi­lar to eIDAS, UETA sta­tes that a signa­tu­re can­not be excluded sim­ply becau­se it is in elec­tro­nic form. The eIDAS Regu­la­ti­on has been in force sin­ce 1 July 2016 and sti­pu­la­tes that “an elec­tro­nic signa­tu­re may not be depri­ved of legal effect and admis­si­bi­li­ty as evi­dence in judi­cial pro­cee­dings sole­ly becau­se it is in elec­tro­nic form”. Sin­ce the eIDAS Regu­la­ti­on cle­ar­ly sta­tes that an elec­tro­nic signa­tu­re can­not be denied legal effect becau­se it is digi­tal or does not EQ, you have a choice when it comes to your documents.

Howe­ver, if you opt for an SES or an AES, it is up to you, in case of pro­blems, to pro­ve that the signa­to­ry was who he clai­med to be. For total secu­ri­ty in elec­tro­nic iden­ti­fi­ca­ti­on, QES is the best opti­on. One of the big­gest con­cerns about elec­tro­nic signa­tures was whe­ther they were legal­ly bin­ding or not. This uncer­tain­ty has made many com­pa­nies hesi­tant to make the switch. By reluc­tant to switch to elec­tro­nic signa­tures, com­pa­nies lose signi­fi­cant advan­ta­ges. Howe­ver, the ques­ti­on is not whe­ther elec­tro­nic signa­tures are man­da­to­ry, they cle­ar­ly are. The ques­ti­on is whe­ther a cer­tain signa­tu­re can be “authen­ti­ca­ted”. In other words, can it be pro­ven that the per­son who signed the docu­ment was actual­ly the signa­to­ry? Due to the incre­asing use of elec­tro­nic signa­tures, the fede­ral govern­ment has enac­ted the U.S. Glo­bal and Natio­nal Elec­tro­nic Signa­tures Act (ESIGN) and the Uni­form Elec­tro­nic Tran­sac­tions Act (UETA) (coll­ec­tively, the “Laws”) to address issues rela­ted to elec­tro­nic signa­tures. The laws have four main requi­re­ments for an elec­tro­nic signa­tu­re to be con­side­red valid (and authen­ti­ca­ted) under U.S.

law: How does an elec­tro­nic signa­tu­re hold up when chal­len­ged in court? Howe­ver, while the UK still reco­g­ni­s­es EU trust ser­vices for the pro­vi­si­on of digi­tal cer­ti­fi­ca­tes for elec­tro­nic signa­tures, the EU no lon­ger reco­g­ni­s­es UK trust ser­vice pro­vi­ders. This means that a QES gene­ra­ted in the UK may not car­ry the same weight within the EU. While any type of elec­tro­nic signa­tu­re can be legal­ly bin­ding, the­re are a num­ber of steps you need to take to ensu­re its vali­di­ty. Here is a check­list of the­se requi­re­ments. The United Sta­tes intro­du­ced the ESIGN Act in 2000, which gives elec­tro­nic signa­tures the same weight as hand­writ­ten signa­tures. It descri­bes an elec­tro­nic signa­tu­re as “an elec­tro­nic sound, sym­bol or pro­cess atta­ched or logi­cal­ly asso­cia­ted with a con­tract or other recor­ding, exe­cu­ted or accept­ed by a per­son with the intent to sign the recor­ding.” The law descri­bes a “digi­tal signa­tu­re” as rough­ly equi­va­lent to a QES in the EU. In the United Sta­tes, an elec­tro­nic signa­tu­re is only legal if the­re is evi­dence of the signer‘s inten­ti­on to accept the agree­ment they signed. For exam­p­le, the pro­cess of sig­ning an elec­tro­nic docu­ment may be con­side­red an inten­ti­on to accept the agree­ment. Some­ti­mes the pro­cess requi­res the signer to also enter their name befo­re signing.

Banc of Ame­ri­ca Mer­chant Ser­vices (BAMS) pro­vi­ded cre­dit card pro­ces­sing ser­vices to IO Moon­wal­kers (a com­pa­ny that sells hover­board scoo­ters). A dis­pu­te aro­se bet­ween the par­ties over char­ge­backs for frau­du­lent purcha­ses and Moon­wal­kers clai­med that it never elec­tro­ni­cal­ly signed the con­tract with BAMS. Howe­ver, in its request for sum­ma­ry judgment, BAMS pro­vi­ded Docu­Sign records show­ing the date and time that a per­son using Moon­wal­kers‘ email address view­ed the con­tract, signed the con­tract, and then view­ed the final ver­si­on ful­ly executed.