Overview of eSignature Legality

Are eSignatures widely recognized as legally binding and enforceable?

Electronic Signatures in Global and National Commerce Act (ESIGN Act)

The U.S. Electronic Signatures in Global and National Commerce Act of 2000 was passed in order to better secure and regulate interstate and foreign commerce. The US Federal ESIGN Act defines eSignatures as "an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record."
The law establishes the legal equivalence of electronic signatures and handwritten signatures in the context of electronic commerce, and confirms that electronic signatures have the same legal weight as traditional pen and paper documents.
According to the ESIGN Act, a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

Electronic Identification and Trust Services Regulations (eIDAS Regulations)

eIDAS define electronic signatures, “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.”
The eIDAS Regulation defines three different types of electronic signatures that vary in terms of being legally binding and the area of applications:

  • Simple electronic signature (SES): An electronic signature is defined as "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". Thus, something as simple as writing your name under an e-mail might constitute an electronic signature.

  • Advanced electronic signature (AES): An advanced electronic signature is an electronic signature which is additionally uniquely linked to and capable of identifying the signatory, created in a way that allows the signatory to retain control, and linked to the document in a way that any subsequent change of the data is detectable.

  • Qualified electronic signature (QES): A qualified electronic signature is an advanced electronic signature which is additionally created by a qualified signature creation device (QSCD), is based on a qualified certificate for electronic signatures, and it is equivalent to a handwritten signature.

The standard electronic signature (SES) can be used on on certain types of documents, including:

  • HR documents such as Employee onboarding agreements and Employee contracts.

  • Commercial agreements such as Non-disclosure agreements, invoices, sales agreements, and service agreements

  • Software licensing agreements

  • Licenses of intellectual property, including patent, copyright and trademark

Swiss Federal Law on Electronic Signatures (ZertES Regulation)

ZertES is a Swiss Federal law that regulates the conditions under which trust service providers may use certification services with electronic signatures. ZertES was approved into law on December 19, 2003. The law promotes the use of secure services for electronic certification to facilitate the use of qualified electronic signatures. Under this law, the signatures would be equal to a handwritten signature.
Under ZertES, an electronic signature refers to electronic data that is either attached to or associated to other electronic data, which serves as a means of authentication for that data. The Swiss Federal Council has made international agreements to facilitate the international use of electronic signatures and allow for their legal recognition. Therefore, the council allows that electronic signatures that have been technically implemented as digital standards in eIDAS be accepted.

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eSignatures legality in United States

In the United States, electronic signatures are legally enforceable under the Electronic Signatures in Global and National Commerce (ESIGN) Act and the Uniform Electronic Transactions Act (UETA), as long as specific basic requirements are satisfied. Some of these requirements are:

  • There must be a legitimate intent to sign by the document signer.

  • All parties involved must consent to do the business electronically.

  • The electronic signature solution in use must keep an associated record that reflects the process by which the signature was created.

  • The electronic signature solution in use must accurately reflect the agreement and can be reproduced as required.

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eSignatures legality in European Union

In the European Union (EU), electronic signatures are considered a legally-binding solution and can be admissible as evidence in EU courts as long as they comply with the eIDAS Regulation (electronic Identification, Authentication and trust Services). According to electronic signature laws in the European Union, a handwritten signature is not required to validate a business contract and if the parties involved reach a verbal, written, or electronic agreement, that contract is considered legally binding.eIDAS recognizes three types of electronic signature: simple e-signature (SES), advanced e-signature (AES), and qualified e-signature (QES).

eSignatures legality in United Kingdom

Prior to the United Kingdom’s withdrawal from the European Union,, the eIDAS Regulation had direct effect in the UK, as eIDAS established an EU-wide legal framework for electronic signatures and other trust services. However, On 31 December 2020, eIDAS was incorporated with minor amendments into UK domestic law and was called UK eIDAS. It largely mirrors what eIDAS states on the legality of eSignatures and legally valid eSignatures are enforceable in general business use and cannot be denied admission in court solely on the grounds of not being handwritten.

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eSignatures legality in Switzerland

Electronic signatures were legalized in Switzerland on December 19, 2003, when the Federal Law on Electronic Signatures (ZertES) came into effect. ZertES plays exactly the same role as eIDAS and regulates the activities of services for electronic certification and establishes the requirements for each type of electronic signatures. According to ZertES, a standard electronic signature (SES) is data in an electronic form which is used for further authentication of other data in electronic form.

eSignatures legality in Canada

In Canada, electronic signature has the same legal weight as a handwritten signature and each kind of eSignature is equivalent to a physical signature and are fully admissible in courts. Electronic signature in Canada is regulated federally by PIPEDA, the Personal Information and Electronic Documents. The act became in effect in 2004 and defines an electronic signature as a "signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to, or associated with an electronic document."

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Disclaimer

The information on this site is for general information purposes only, and Sign.Plus cannot guarantee that all the information on this site is current or accurate. This is not intended to be legal advice and should not be a substitute for professional legal advice. For legal advice, consult a licensed attorney regarding your specific legal questions.

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