Is e-signature legal?

Yes. Here is an overview of legal frameworks in major jurisdictions

United States

ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT
Uniform Electronic Transaction Act

It is important to seek permission from all parties to conduct business electronically.

Real property transfers, wills and some legally required notices to consumers are excluded.

United Kingdom

A guide to electronic signatures published by the UK government can be accessed here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/545098/beis-16-15-electronic-signatures-guidance.pdf (withdrawn)

Electronic execution of documents Industry Working Group

 

 

The UK government divides electronic signatures into three groups:

  • Simple electronic signatures – these include scanned signatures and tickbox plus declarations (MyDocSafe offers those)
  • Advanced electronic signatures – can identify the user, is unique to them, is under the sole control of the user and is attached to a document in a way that it becomes invalidated if the contents are changed (this is the type of signature currently offered by MyDocSafe, note however that we currently do not issue individual signing certificates – these are in development and will be released soon)
  • Qualified electronic signatures – an advanced electronic signature with a digital certificate encrypted by a secure signature creation device e.g. smart card (we currently offer those through a number of qualified trust providers seamlessly integrated with our platform)

Recent developments on electronic deeds

Technological advancement is finally starting to get noticed.  A recent note by Law Society has recognised that ‘if the witness is co-located with the signee’, then it does not matter if the act of signing is done on paper or via an electronic means.  This opens up the opportunity to use electronic signature facilities for deeds:

“section 1(3) of the LP(MP)A 1989 provides that an instrument is validly executed as a deed by an individual (including an individual acting under a power of attorney) if it is signed by him in the presence of a witness who attests the signature (and, by section 1(4), ‘sign’ includes making ones mark on the instrument). Section 44 of the CA 2006 provides that another of the ways in which a document can be validly executed by a company incorporated under the CA 2006 is if it is signed on behalf of the company by a director of the company in the presence of a witness who attests the signature. In the opinion of leading counsel and the JWP, where a suitable signatory signs a deed using an electronic signature and another individual genuinely observes the signing (ie he or she has sight of the act of signing and is aware that the signature to which he or she is attesting is the one that he or she witnessed), he or she will be a witness for these purposes. If that witness subsequently signs the adjacent attestation clause (using an electronic signature or otherwise), that deed will have been validly executed. The practical means of witnessing different forms of electronic signature will need to be settled on a case-by-case basis, with consideration given to the evidential weight of the form agreed (see paragraph 5 below). However, in the opinion of leading counsel and the JWP, it is best practice for the witness to be physically present when the signatory signs, rather than witnessing through a live televisual medium (such as a video conferencing facility), in order to minimise any evidentiary risk as to whether the person genuinely witnessed the signing.”
See the full note here:

European Union

Current regulatory regime in the European Union.

From 1 July 2016 the current regulatory framework has changed. The Directive on Electronic Signatures (1999/93/EC) has been replaced with a new framework, commonly called e-IDAS (910/2014/EU). E-IDAS provides mutual recognition of e-signatures, e-seals, time stamping, website authentication and e-registered delivery services among EU member states which adopt the regulation.  E-IDAS also introduces the advanced electronic signature concept as well as the definition of qualified and non-qualified trust services.  The aim of E-IDAS is to build public confidence in the security of digital transactions and to encourage them to use electronic signatures.

You can view the directive here:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.257.01.0073.01.ENG