With technology taking over the world, it has become essential for our law to keep up with the times and develop legal mechanisms in accordance with digital advancements. In an era where electronic contracts have become the norm, it is imperative that we establish the legality behind what constitutes a valid electronic signature. This article will be discussing what electronic signatures are and how they are used to conclude digital contracts.
Types Of Electronic Signatures
The Electronic Communications and Transactions Act, 25 of 2002 (ECTA), distinguishes between two kinds of electronic signatures, namely electronic signatures and advanced electronic signatures. Electronic signatures are recognized as relaying a signatory's consent to the information contained in a document. Simply, data is attached, incorporated or associated with other data, conveying the user's intention to sign the document. These signatures include ticking the "I consent" box on a document, drawing your signature on a device, or typing your name on the intended document.
Advanced electronic signatures, on the other hand, are signatures created by the user and are accredited by the South African Accreditation Authority. The accreditation process is the means of verifying the authenticity of the signature. For an advanced electronic signature to be authenticated, the following requirements must be met: the signature must be uniquely linked to the signatory; the authenticator must be able to identify the signatory; the signature must be created in a manner that the signatory can solely maintain; the signature must link to information that is capable of detecting any subsequent changes, and finally the signature must be based on the physical identification of the signatory.1
Electronic Signatures V Wet Ink Signatures
As discussed above, electronic signatures are digital signatures used to convey a signatory's intention to be bound by the contents of a document. Therefore, Wet Ink signatures are the traditional written and physical signatures that relay a signatory's consent to a document.
Section 13 of the ECTA recognizes electronic signatures as valid and can be used as a method to verify a signatory's intention to be bound to a contract. Therefore, in some circumstances, electronic signatures hold the same weight as wet ink signatures, and the same consequents can be attached to electronic signatures.
Although the ECTA has granted electronic signatures the same status as wet ink signatures, in certain circumstances, electronic signatures cannot be used as a method to show the consent of a signatory to be bound to a document. These circumstances include the execution of wills or codicils contracts relating to the alienation of immovable property, bills of exchange and long-term leases above 20 years.
Traditional signatures are losing their relevance in the world of technology and digital contracts. There is no need to panic, though, because, with the approval of the ECTA, electronic signatures will safely lead us into the future.
https://www.webberwentzel.com/News/Pages/covid-19-frequently-asked-questions-on-electronic-signatures.aspx Accessed on: 21 November 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.