What is considered an electronic Signature?

In the United Kingdom, as in many other countries across the world, electronic signatures can take a number of different forms, including:

• a type written name (in a font of one's choosing) in a contract or in an email containing the terms of a contract.
• an electronic representation of a signature (in the form of an image or a biometric fingerprint) affixed in a particular place in an electronic copy of a contract.
• a person using a finger, light pen or stylus and a touchscreen to write their name electronically in the appropriate place.

Legal Framework and Admissibility

Electronic signatures are admissible in court in England and Wales under the Electronic Communications Act 2000 ( ECA ). Section 7(1) of the ECA 2000 outlines that in any legal proceedings:

• an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and
• the certification by any person of such a signature shall each be admissible in evidence in relation to any question as to the authenticity or integrity of the communication or data

Beginning on July 1, 2016, European Union regulation No 910/2014 - the eIDAS Regulation provided a legal framework for electronic signatures (as well as for electronic seals, electronic time stamps, electronic registered delivery services and website authentication) for all EU member states. Since Brexit negotiations came into full effect in 2021, digital signatures in UK are now governed by UK's own eIDAS laws which are similar in spirt to the eIDAS Regulations applied in the EU.

eIDAS Regulations define three types of electronic signatures: electronic signature, advanced signature, and qualified electronic signature.

1. Electronic signature: This covers the broad category of all electronic signatures including any 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 most general form of electronic signature and covers the definition of an electronic signature provided earlier.
2. Advanced electronic signature: This is a type of electronic signature that must meet specific requirements providing a higher level of signer ID verification, security, and tamper-sealing. The Regulation requires that it is:
   • Uniquely linked to the signer
   • Capable of identifying the signer
   • Created using signature creation data that the signer can use under their sole control
   • Linked to the signed data in such a way that any subsequent change in the data is detectable
3. A qualified electronic signature: This is the only type of electronic signature that has special legal status in UK law, and is the legal equivalent of a hand-written signature. This type of electronic signature must meet advanced electronic signature requirements and be backed by a qualified certificate - a certificate issued by a trust service provider that has been granted qualified status by the Information Commissioner's Office (ICO) and is therefore on the UK Trusted List. The trust service provider must verify the identity of the signer and vouch for the authenticity of the resulting signature.

Under the new eIDAS law the legal strength of eSignatures depends on a number of factors, including the type of eSignature used, with more credibility assigned to the use of advanced qualified signatures. For example, a typed name at the bottom of an email is more likely to be successfully challenged in a court of law, than a qualified electronic signature that meets all technical standards, is backed by a UK Qualified Trust Service Provider (TSP), and contains significant embedded signer information.

To date, the use of qualified electronic signatures appears to be uncommon in UK courts. Also, legal restrictions requiring other specific types of signature or preventing the use of electronic signature are similarly uncommon. Stringent signer identification and signer certificate requirements can make qualified electronic signatures impractical for many business transactions. As such, no specific type of electronic signature is legally required for the overwhelming majority of corporate, commercial, consumer, HR, and financial transactions under UK law.

Limitations

There are certain contracts where signing a hard-copy of a document in wet-ink may still be required. Though the law does not exclude specific types of agreements, certain types of agreements such as wills, court documents, land titles, and deeds, may fall into this category.