1. What are eSignatures?

An electronic signature (eSignatures) is intended to provide a secure and accurate identification method for the signatory to provide a seamless transaction. Definitions of electronic signatures vary depending on the applicable jurisdiction. However, there are four main types of eSignature:

Simple eSignature - means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign. This is the first basic level of signature without more attributes. This type of eSignature can be as simple as having a tick box which is "accepted".

Advanced eSignature - means an electronic signature which meets the following requirements:  a) it is uniquely linked to the signatory; b) it is capable of identifying the signatory; c) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.

Qualified eSignature - means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures. Or in other words based on a public key that also uses a secure signature creation device and a qualified certificate.

Digital Signatures should not be confused with eSignatures and are the underlying technical mechanism that can guarantee that electronic documents are authentic. They consist of a key generation algorithm, a signing algorithm and a signature verifying algorithm.

2. GetBusy eSignatures

GetBusy eSignatures are Advanced Electronic Signatures (AES) with Handwritten E Signatures capabilities, depending on which method the signatory chooses to use: either sign your own or have GetBusy draw one for you.

The key features that the GetBusy eSignature has to ensure they abide by respective UK, AU, NZ and US regulations are:

  • Identity is determined by email address in order to uniquely link the document to the signatory.
  • The date and time the Signatory signed the document is recorded in the document, alongside their email address, and details of the user that sent the document.
  • For further proof of identity, the signatures also include the IP Address that the recipient used whilst signing the document.
  • Any changes to the document will invalidate the electronic signature.
  • All users of GetBusy must accept our terms and conditions, even if they don't sign up for an account.

3. eSignatures, the UK and Brexit

As part of the EU, the UK has recognised Electronic Signatures since 2002 with the Electronic Signatures Regulations 2000 (ECA 200) and the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (eIDAS).

Following Brexit, it is expected that the eIDAS Regulation will be adopted into UK law, pretty much unchanged no matter what the eventual outcome of Brexit is; the EU Withdrawal Agreement obliges that EU Regulations including the eIDAS Regulation will continue to apply.

As the main driver behind creating the eIDAS Regulation was to create easier, safer and quicker ways for businesses and organisations to carry out transactions on digital platforms, it is unlikely that the UK Government will seek any significant amendment to them. However, we won't know for sure until such time as the new UK Regulations are enacted.

4. eSignatures and Legal standing in the UK, Australia, New Zealand and the Unites States of America

Most of the world's legislation makes clear that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures. However, the more evidence that can be presented that the eSignature was obtained lawfully and willingly the better the chances that it will stand in court.

The supporting legislation:

  • for the UK- E signatures s7(1) Electronic Communications Act 2000 ("ECA 2000") for the UK,
  • for Australia- ElectronicTransactions Act 1999 for Australia,
  • for New Zealand - ElectronicTransactions Act 2002 for New Zealand,
  • For the USA - Electronic Signatures in Global and National Commerce Act which was enacted at federal level and the Electronic Transactions Act 1999 which has been enacted across the USA

These legislative Acts allow eSignatures to be allowed to, amongst other things, support the existence, authenticity and valid acceptance of a contract.

Like most things, there are exceptions where eSignatures aren't permissible to be used; in the UK these currently include deeds which are registrable with the UK Land Registry, and wills, and in Australia, approved forms such as activity statements and tax returns. In the United States property transactions and some consumer notices, in addition, other federal acts may require handwritten eSignatures with an accompanying digital signature. However, in New Zealand they have very few exemptions.

5. Further Reading

For further information you might want to check out the following:

UK Gov

Legislation.gov.au

Ird.govt.nz

Uscode.house.gov

Govinfo.gov

6. Disclaimer

This information has been put together as a guide and should not be relied upon as a substitute for competent legal advice from a qualified legal practitioner.