In business we all send many emails every day. Amongst the thousands of emails we send and receive every year, some may form contracts, some may be intended to change existing contractual arrangements and some may be guaranteeing obligations of third parties.
But, is the legal effect of putting your email signature on your email, the same as signing a letter, a contract or a guarantee? Or not?
As with much in the law, the answer is that it depends.
Electronic Communications Act 2000 (the Act)
Under section 7 (1) of the Act electronic signatures and any certification of the signature by any person is admissible in evidence in legal proceedings in relation to the question of the authenticity and integrity of the communication.
The evidential weight given to the electronic signature will depend on the type of electronic signature used. A simple typed signature will not have the same weight as an electronic signature certified by a certification authority.
The Act, together with the Electronic Signatures Regulations 2002, implements the Electronic Signatures Directive (99/93/EC)
The Electronic Signatures Directive (99/93/EC) (the Directive)
The Directive was designed to ensure the free movement of electronic signatures and supporting products within the EU. It distinguishes between electronic signatures and advanced electronic signatures. An advanced electronic signature must be:
- uniquely linked to the signatory;
- capable of identifying the signatory;
- created using means that the signatory can maintain under his sole control;
- linked to the data in such a manner that any subsequent change of the data is detectable.
The most common methods of achieving this are to use cryptography (symmetric or asymmetric) technology or to have the e-signature verified by an independent third party.
The effect of the Act is that all e-signatures are admissible in UK legal proceedings. The nature of the particular e-signature will establish its evidential weight.
- Advanced e-signatures will be deemed to be legally admissible as evidence of signing.
- A non-advanced e-signature, whilst not automatically admissible, is also not automatically inadmissible.
- The evidential weight given to the e-signature will depend on the circumstances surrounding it.
The definition of e-signatures under the Act is wide. It includes anything in electronic form incorporated in, or associated with, an electronic communication or electronic data for the purpose of establishing the authenticity or integrity of that communication or data.
- It is estimated that there are some 40,000 references in current UK legislation to “in writing” or “signed”.
- The government has opted for a legislation-by-legislation approach to this, rather than introducing a blanket provision deeming every reference to “in writing” or “signed” to permit electronic signature or writing.
- The Law Commission has advised that, in its view, the statutory requirement for “writing” is generally capable of being satisfied by emails and the requirement for “signature” by the use of a digital signature, scanned manuscript signature or typing a name or initials.
- The Law Commission was of the opinion that it was “function” rather than “form” which was important when determining validity.
- In Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and another , the Court of Appeal confirmed that an email containing an e-signature would be sufficient to satisfy the requirement in section 4 of the Statute of Frauds 1677, requiring a guarantee to be in writing and signed by the guarantor.
There are various options with regard to e-signatures. It would seem that the cryptography approach is the most secure. However, given the Law Commission’s stance and the apparent openness of the English courts, it is considered that the risk of an e-signature failing to satisfy the requirements for a “written” contract to be “signed” is low, regardless of the form.