The Validity of an Electronic Signature

Types of Electronic Signatures

At the outset, it is important to clarify that there are two types of digital signatures: advanced electronic signatures and ordinary electronic signatures as specified by the Electronic Communications and Transactions Act (ECTA). It is also important to note that not all agreements are required by law to be signed in order to be valid and binding. Certain agreements, like wills, are required by law to be signed. For these types of documents, an advanced electronic signature is required. In South Africa, an advanced electronic signature must be issued by an accredited provider. Accredited providers are appointed and published by the South African Accreditation Authority. Currently only two vendors are accredited, the South African Post Office and LAWtrust. For all other agreements being signed digitally an ordinary electronic signature will suffice provided the provisions of the ECTA are complied with.

International Position

South Africa generally follows the EU Directive on Electronic Signatures. It is considered a two-tier jurisdiction because it gives digital signatures the same status as handwritten signatures but also recognizes simple electronic signatures as legal and enforceable. Countries that follow this model give companies the opportunity to select different forms of signatures and customize their business processes based on the form that is most convenient and appropriate for each use case.

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Consent

Consent is the prerequisite for allowing electronic signatures. However, according to Section 13(5) of the Electronic Communications and Transactions Act, if the parties have not agreed on a specific type of electronic signature, as long as there is a) a method to identify the person and to indicate the person’s approval of the information communicated; and b) the method is reliable and appropriate for the purpose for which the information was communicated, electronic signatures are also legal, admissible and enforceable in South Africa. Notwithstanding the aforegoing, as case law has been inconsistent around the question of consent, we would advise that consent to use a specified electronic signature methodology is drafted into your agreements.

Are Electronic Signatures Safe?

This question depends on the particular vendor you choose to use. However, with most well-known e-signature vendors available, when you use digital signatures, each signer is issued a certificate-based digital ID by a trusted Certificate Authority (CA), and signing is backed by public key infrastructure (PKI) technology. The certification complies with international standards for advanced digital signatures (although unless such vendor is accredited by the South African Accreditation Authority these will not be valid as advanced electronic signatures in South Africa) and global best practice. Fully signed agreements are automatically archived in the cloud with a full audit trail.

Written by Sián Fields (Copyright IP & Technology, Data Privacy and Commercial Law Specialist)

This article originally published by Reynolds Attorneys