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APPENDIX E

Overseas developments relating to electronic signatures since ECom 1

Singapore

Electronic Transactions Act 1998

E1 THE ACT PROVIDES that where a rule of law requires a signature,or provides consequences if a document is not signed then an “electronic signature” satisfies that rule of law (section 8). “Electronic signature” is defined in section 2. Section 4 provides that the Act does not apply to any rule of law requiring writing or signatures in relation to wills, negotiable instruments, declarations of trust, documents of title, powers of attorney, indentures and instruments for dealings in land. These exceptions may be amended by regulation made under section 4(2). Section 5 provides that Parts 2 and 4 may be varied by consent of the parties. It enacts article 4 of the Model Law.

E2 The Act also establishes a regime of “secure electronic signatures”. Section 18 provides that in any proceeding involving a “secure electronic signature”, it shall be presumed that the secure electronic signature is the signature of the person to whom it correlates and that the secure electronic signature was affixed by that person with the intention of signing or approving the electronic record. The Act sets out when a signature will be considered a “secure electronic signature” (sections 17, 20).

E3 The Act sets out the representations which a certification authority makes by issuing a certificate (section 30); sets out rules in relation to the revocation and suspension of certificates by a certification authority (sections 31–35); places obligations on subscribers for certificates (section 37); places an obligation on subscribers to exercise reasonable care to retain control of the private key corresponding to the public key listed in the certificate and prevent its disclosure to others (section 39) and to notify the certification authority if the private key is compromised (section 40); sets out presumptions which apply in relation to certificates (section 21); provides rules in relation to the allocation of risk for invalid digital signatures (section 22); sets out when reliance on a digital signature is foreseeable (section 23); and creates a number of criminal offences (sections 25, 26). The Act also regulates certification authorities (see, for instance sections 41 and 42) and provides rules in relation to the liability of certification authorities.

Australia

Electronic Transactions Bill 1999

E4 Section 10 of the Electronic Transaction Bill is in substantially the same terms as article 7(1) of the Model Law. Section 13 provides that regulations may provide that section 10 shall not apply to a particular law. The Bill also sets out rules for the time and place of dispatch of electronic communications (section 14) and in relation to attribution of electronic messages (section 15). The Electronic Transactions Bill is reproduced as appendix C.

Canada

Uniform Electronic Commerce Act

E5 Section 10 of the Uniform Act is similar to article 7(1) of the UNCITRAL Model Law. Section 10 provides:

A requirement under [enacting jurisdiction] law for the signature of a person is satisfied by an electronic signature if–

(a) the electronic signature is reliable for the purpose of identifying the person, in the light of all the circumstances, including any relevant agreement and the time the electronic signature was made;

(b) the association of the electronic signature to the relevant electronic document is reliable for the purpose for which the electronic document was made, in the light of all the circumstances, including any relevant agreement and the time the electronic signature was made; and

(c) where the signature or signed document is to be provided to the Government,

(i) the Government or the part of Government to which the information is to be provided has consented to accept electronic signatures; and

(ii) the electronic document meets the information technology standards and requirements as to method and as to reliability of the signature, if any, established by the Government or part of Government as the case may be.

E6 The section 1(b) definition of “electronic signature” is expressed in technologically-neutral language. Section 2(3) of the Act provides that nothing in the Act applies to wills and their codicils, trusts created by wills, powers of attorney, negotiable instruments, or dealings and interests in land. The Act has been drafted by the Uniform Law Conference of Canada, which promotes the harmonisation of Canadian legislation. The Act will not however become law until it is adopted by one or more of Canada’s provinces or territories.

Personal Information Protection and Electronic Documents Bill

E7 This Bill was due to receive its second reading in the Canadian Parliament on 4 November 1999. The provisions relating to electronic documents will apply to federal statutes and regulations only. “Electronic signature” is defined in section 31(1) as meaning

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.

The Bill goes on to provide in section 43 that a requirement under a federal law for a signature will be satisfied by an electronic signature, provided the relevant regulations have been complied with.

United States

Draft Uniform Electronic Transactions Act

E8 In March 1999 the National Conference of Commissioners on Uniform State Laws published a Draft Uniform Electronic Transactions Act. The draft provides that a record or signature may not be denied legal effect or enforceability solely because it is in electronic form (section 106). Section 106(d) provides that if a law requires a signature the law is satisfied with respect to an electronic record if the electronic record includes an electronic signature. The draft does not relate to electronic signatures for wills, codicils, or testamentary trusts (section 103). Section 110 provides that if a law requires that a signature be notarised or acknowledged, the law is satisfied with respect to an electronic signature if a security procedure was applied which establishes the identity of the person signing the electronic record and that the electronic record had not been altered since it was electronically signed.

Illinois Electronic Commerce Security Act 1998

E9 Section 5–120 provides that an electronic signature will, generally, satisfy a rule of law where the law requires a signature. However, a number of exceptions are created. For instance, the provisions of the section do not apply to any rule of law governing the creation or execution of a will, trust, living will, healthcare power of attorney, negotiable instrument or instrument of title.

E10 The Act also sets up a regime of “secure electronic signatures”. The Act provides that in civil disputes, it shall be rebuttably presumed that a secure electronic signature is the signature of the person to whom it correlates (section 10–120). The Act sets out detailed requirements for an electronic signature to be classified as a “secure electronic signature” (sections 10–110, 10–135, 15–105).

E11 The Act places duties on those generating and using “signature devices” (section 10–125); creates offences in relation to the unauthorised use of “signature devices” (sections 10–140, 15–220); sets out when reliance on “certificates” will be foreseeable (section 15–205); prohibits publication of certificates in certain circumstances (section 15–205); creates offences in relation to the use of certificates (sections 15–210, 15–215); requires certain disclosures to be made by certification authorities (section 15–305); sets out the representations which are made by certification authorities by issuing a certificate (section 15–315); sets out when a certificate must be revoked (section 15–320); provides rules in relation to the admissibility of electronic signatures (section

5–130); sets out rules in relation to the attribution of secure electronic signatures (section 10–130) and places duties on the subscribers of certificates (section 20–101).

Minnesota Electronic Authentication Act 1998

E12 Section 325K.19(a) provides that where a rule of law requires a signature, or provides for certain consequences in the absence of a signature, that rule is satisfied by a digital signature if certain requirements are met. “Digital signature” is defined in section 325K.01.

E13 The Minnesota statute provides for and regulates certification authorities. For instance, the Act sets out rules in relation to audits of certification authorities (section 325K.06), the investigation of certification authorities (section 325K.07), the suspension and revocation of licences for certification authorities (section 325.K.07), the issuance, revocation and suspension of certificates (section 325K.10, section 325K.16), and also rules as to the warranties and obligations imposed on a certification authority by the issuance of a certificate (section 325K.11). The Act also sets out what an organisation must do to be able to obtain a licence to be a certification authority (section 325K.05), provides that parties may provide for the effectiveness and enforceability of digital signatures by contract (section 325K.05), sets out the representations which are made by a subscriber for a certificate (section 325K.12), and provides rules in relation to the allocation of risk (section 325K.20).

Missouri Digital Signatures Act 1998

E14 The Missouri Digital Signature Act 1998 is in substantially the same terms as the Minnesota Electronic Authentication Act 1998.

European Commission

E15 In May 1988 a document entitled “A Proposal for a European Parliament and Council Directive on a Common Framework for Electronic Signatures” was released. The Directive covers the legal recognition of electronic signatures.

E16 Article 5 of the Directive provides that Member States must ensure that an “electronic signature” is not denied legal effect, validity or enforceability solely on the grounds that the signature is in electronic form, is not based upon a “qualified certificate”, or is not based upon a certificate issued by an accredited “certification service provider”. Article 5 also provides that Member States must ensure that electronic signatures which are based on a qualified certificate issued by a certification service provider are recognised as satisfying the legal requirement of a hand written signature and are admissible as evidence in legal proceedings in the same manner as hand written signatures.

E17 Article 3 provides that Member States must not make the provision of certification services subject to prior authorisation. However, Member States may introduce or maintain voluntary accreditation schemes aimed at enhancing levels of certification service provision. Article 6 sets out the liability of certification service providers which issue qualified certificates. Article 7 provides that Member States must ensure that certificates issued by a certification service provider established in a third country are recognised as legally equivalent to certificates issued by a certification service provider established within the European Community as long as certain requirements are met.

Korea

Electronic Transaction Law

E18 Article 5 provides that an electronic message shall not be denied legal validity on the ground that it is in electronic form. “Electronic Message” is defined in article 2. Article 6 provides that a digital signature certified by an authorised certification authority is deemed a valid signature or seal as prescribed by relevant laws. “Digital signature” is also defined in article 2. Article 16 provides that the government may designate an authorised certification authority to ensure the security and reliability of electronic commerce.