October 24, 2023
How Legally Binding are Online Signatures?
In today’s digital society, one of the most significant transformations has been the way we sign documents. Whether it is signing contracts, agreements, or other legal documents. But how legally binding are these electronic signatures? In this blog, we will explore the types of eSignatures, what makes eSignatures legally binding, the laws governing them, and the situations where eSignatures should and should not be used.
What is an Electronic Signature?
An electronic signature (eSignature) is a digital representation of a person's handwritten signature or a legally binding mark that is used to sign documents electronically. It signifies an individual’s consent or approval and carries the same legal weight as a traditional wet signature.
Electronic signatures are recognised worldwide, but laws differ by country. Electronic signatures have been recognised in UK Law since 2002. Their legal status was reinforced further by the EU's eIDAS Regulations in 2016 (UK eIDAS since Brexit). In 2000, the U.S. government approved the ESIGN Act, which allows legally binding documents to use electronic signatures if all parties agree. This law applies throughout the United States.
These laws have given electronic signatures the same legal status as traditional wet signatures. These laws not only legitimise electronic signatures but also empower customers, knowing their documents are legally binding. Learn more about eSignature Law
Types of eSignatures
The EU's eIDAS Regulations and the UK eIDAS, define the three levels of Electronic Signature.
Simple Electronic Signatures (SES): SES is a basic form of electronic signature, where an individual electronically signs a document, showing that they agree. It is simple, easy to use and suitable for everyday documents such as internal documents or email agreements. It could be a drawing inserted into a document or a name typed on an email. There is no form of advanced verification.
Advanced Electronic Signatures (AES): AES includes additional security measures that require enhanced verification of the signer. In addition, when the signature is created, any subsequent change to the document should be easily detectable. AES is suitable for high-value transactions such as business contracts and financial agreements.
Qualified Electronic Signatures (QES): QES is the strongest form of electronic signature, as it is based on EU’s eIDAS regulations and requires identity verification, for example a digital certification or biometric verification. This builds a strong level of authentication and encryption, creating a strong legal bind between an individual and a contract. This is suitable for highly regulated or valued documents like medical records or government documents.
Confirming the Validity of an Electronic Signature
The UK Law Commission states that “An electronic signature is admissible in evidence in legal proceedings, to prove or disprove the identity of a signatory and/or the signatory’s intention to authenticate the document.”
But just like a wet signature an eSignature can be contested if it can be proved the signer did not intend to sign or that the document has been altered in some way after signing. For an eSignature to be legally binding it should pass the four pillars of Intent, Consent, Accuracy and Retention.
Intent – Meaning to Sign the Document
It is important to establish that all parties in the transaction had the intention to sign the document and there was no coercion. This intent is typically demonstrated by their actions, such as typing their name, ticking a box or using a dedicated electronic signature tool.
Consent – Agreeing the Content of the Document
When someone electronically signs a document, the individual is saying "I agree" or "I consent" to the content outlined in the document, and this is a key factor in making the document legally binding. Electronic Signatures can be proven to pass this test.
Accuracy - Verification of Intent and Consent
Using a professional electronic signature provider (like Legalesign) can help ensure the validity of a signed document. These systems often incorporate an audit trail that provides a transparent and chronological history. In addition, security measures such as Two factor Authentication, IP address logging, time/date stamping help confirm that the person signing the document is indeed the individual they claim to be. While Certified PDF’s can be used to safeguard the accuracy and integrity of the document.
Retention – Keeping a Record of Signing
Keeping a lasting record of not just the document and signer but the audit trail can help prove the authenticity of eSignatures and the validity of the document. It is like a digital paper trail and source of proof. Detailed records of electronic transactions, including information about signatories, the date and time of each signature, and any additional relevant details will serve as a solid foundation in case of disputes.
Where Electronic Signatures are Used?
Within an organisation there are a number of uses for eSignatures for internal documents. Anything from project/report signoffs to maintenance logs and policy documents. However, in this blog we are concerned with documents that have a basis in law.
The UK Law Commission states that:
“An electronic signature is capable in law of being used to execute a document (including a deed) provided that the person signing the document intends to authenticate the document and any formalities relating to execution of that document are satisfied”
So, documents that you might use an electronic signature for could include:
Finance agreements (loans, insurance, mortgages)
Execution of property deeds (leases, mortgages, transfer of ownership)
As long as the four pillars of intent, consent, accuracy and retention are fulfilled, most documents should be able to be legally signed with an eSignature. There are certain documents that have their own statutory requirements. In the case of property deeds, UK Law states that they must be signed in the presence of a witness. The execution of the deed can still be completed using an eSignature, but further steps need to be carried out to ensure validity. More on eWitnessing >
Where You Can Not Use Electronic Signatures?
Electronics Signatures can be used to sign many types of legal documents, however there a few exceptions where UK Law will not recognise an electronic signature. For example, a lasting power of attorney cannot be signed with an electronic signature.
In addition, wills under UK law cannot be signed or witnessed using electronic signatures. However, the Law Commission has recently issued a consultation document where it proposes to allow eSignatures for signing wills. If the UK Parliament agrees to these proposals, it could soon become law.
This blog is intended to give you an overview of the UK law regarding electronic signatures, and should not be construed as legal advice. If you have any specific legal queries, we would always recommend that you consult a qualified lawyer.
We have seen that there are a few different types of electronic signature, each with varying levels of security. Today eSignatures are used by organisations and individuals to sign a variety of documents. So how legally binding are electronic signatures? In most circumstances they are as legally binding as the wet ink alternative. And in many cases, they offer greater security to prove the document validity and the sender’s identity. Apart from the few exceptions under law, there are not many compelling reasons to not use electronic signatures. With speed, security and convenience on their side, electronic signatures will increasingly become the preferred way to sign documents.