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EVIDENCE - Signatures, squiggles and electronic signatures |
If it is a symbol, a squiggle or in electronic form, can a signature still authenticate a document or piece of writing as that of the signatory? |
Traditional manual, hard-copy signatures still endure, while electronic commerce continues to revolutionise how life is lived and how business is done. |
A signature is a person’s name or mark made to authenticate a document or writing. It can be in any form or symbol. If in doubt, there must be evidence that the signatory had the intention to sign. Beyond that, there is no law prescribing the form that a signature must take. It can be any version of the signatory’s name so long as it has been adopted by the signatory with the purpose of authenticating a document. It can be a printed signature, a rubber stamp or computer-produced. It can be the appearance of the name of the signatory. It need not be made manually. |
An electronic signature is no more than an electronic means of performing the functions of a signature – authentication and intention to be bound. |
The law has quickly adapted to electronic commerce with, for example, the e-administration of the law and the legal process, the computerisation of land title and conveyancing, the recognition of the formation of contracts electronically – offer and acceptance by email or by fax – and the imposing of liability for breaches in electronic format of duties of care. |
The common law accepts an electronic signature in paperless transactions to authenticate a document and indicate intention to be bound. |
The law takes electronic signatures at their face value, and does not yet require the use of action to authenticate or identify them. However, a document’s integrity (unaltered content), authenticity (sender’s identity), and confidentiality (of the signatory’s identity or document’s contents) are not ensured merely because an electronic signature is provided. |
Electronic commerce in Australia has been helped by a special law that ensures electronic transactions are equivalent to a hard-copy version, and that there is technological neutrality. This law has replaced the thousands of instances where there was the need for notice in “writing” or that a document be “signed”. |
