Electronic signatures can be relied upon if a reliable and appropriate method is utilised that identifies the originator and indicates the originator’s approval of the information communicated. Whilst it is common practice to use cryptography technology or a certification of the electronic signature by an independent third party, these are expensive options.
Jersey Law does not detail what is meant by ‘appropriate method’, when assessing the authority of an electronic signature the courts will consider the manner in which the electronic form was generated, stored and maintained, and the manner in which the originator was identified or the information was signed.
Therefore, for those considering using electronic signatures, it is advisable that:
- There is proof that the person "signing" the document is who he/she says he/she is
- The process verifies the identity of the person signing
- The electronic signature is securely stored
In English Law, an electronic signature is considered valid when it has been incorporated into, or logically associated with, a communication and purports to be so in establishing the authenticity or integrity of the communication.
Alternatively, an EU Directive implies the need for an electronic signature to be accompanied by a certificate and offers the following definitions:
- the electronic signature, data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication.
- the advanced electronic signature, which meets the following requirements:
- it is uniquely linked to the signatory;
- it is capable of identifying the signatory;
- it is created using means that the signatory can maintain under their sole control;
- it is linked to the data to which it relates in such a manner that any subsequent change in the data is detectable.
- the qualified certificate, which must in particular include:
- an indication that it is issued as a qualified certificate;
- the identification of the certification service provider;
- the name of the signatory;
- provision for a specific attribute of the signatory to be included if relevant, depending on the purpose for which the certificate is intended;
- signature-verification data corresponding to signature-creation data under the control of the signatory;
- an indication of the beginning and end of the period of validity of the certificate;
- the identity code of the certificate;
- the advanced electronic signature of the issuing certification service provider.
Whilst electronic signatures may seem an ideal alternative to hand-signing a large number of documents, for an electronic signature to ‘stand up’ in court the signature must be incorporated into the document, verifiable and held securely so that it cannot be utilized inappropriately. Establishing a sufficient system for electronic signatures appears to be timely and complicated. There is also no consensus as to which forms of electronic signatures are acceptable and the more commonly used, and widely accepted, methods are often expensive.
Therefore, if it is simply one particular instance that has prompted consideration of an electronic signature as an alternative form of signing, it seems to be that setting up an ‘electronic signature’ system would be unnecessarily arduous.