eSignature Laws

Do you know electronically signed documents have the same legal rights due to valid eSignature laws in comparison to the documents signed by a ball pen? Despite this, people suspect if they are permissible by law and are hesitant to use esignatures because they believe it can be forged, misinterpreted, and copied quickly. The hard reality is handwritten signatures can be easily duplicated using different methods adopted by fraudsters like simulation, tracing and freehand. In contrast, electronic signatures have many security and authentication layers to protect the esigned documents along with court-admissible transaction proof backed by the law.

The popularity of esignatures has risen since the year 2000 as world powers have put them on par with handwritten signatures by introducing laws making them legitimate.

To recognize the enforceability of e-signatures:

– India recognized esignatures under the IT Act
– USA recognized ESIGN and UETA
– EU recognized eIDAS Act

Let’s look at the esignature legality in these countries of the world

INDIA

In India, the Information Technology Act 2000 grants the same legal status to electronic and digital signatures as handwritten signatures in Indian law.

Electronic signature

Defined under Section 2(1)(ta) of the IT Act, 2000 as “Authentication of any electronic record by a subscriber using the electronic technique specified in the second schedule and includes a digital signature.”

Chapter III Electronic governance of the IT act grants legal recognition to electronic signatures and electronic governance.

Digital Signature

According to section 2(1)(p) of the Information Technology Act, 2000, a Digital signature means “authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3”

Section 5 of the Information Technology Act, 2000 gives legal recognition to digital signatures.

Chapter V of the IT act provides these details about securing electronic records and electronic signatures.

Secure electronic record: Where any security procedure has been applied to an electronic record at a specific point of time, then such record shall be deemed to be a secure electronic record from such point of time to the time of verification.

Secure electronic signature: An electronic signature shall be deemed to be a secure electronic signature if –

• the signature creation data at the time of affixing the signature was under the exclusive control of signatory and no other person.
• The signature creation data was stored and affixed in such an exclusive manner as may be prescribed.

In case of digital signature, the ―signature creation data means the private key of the subscriber.

How to know if an esignature is valid in India?

Under the IT Act eSignature law, an electronic signature must meet the following requirements to be deemed accurate and lawfully valid:

• An electronic signature must be unique for each signatory.
• The signatory must have control over the data used to produce the electronic signature when signing.
• Any tampering with the affixed electronic signature or the document must be detectable.
• An audit trail records all the steps taken during the signing process
• A certifying authority (CA) must issue the signer certificates authorized by the Controller of Certifying Authorities under the IT act

eSignature IT Act impact on business

Saved up to 1.3 hours per transaction in preparing, reviewing & negotiating documents

• Improved document security & reduced time spent on documents from hours to minutes
• Faster sales cycles with ready-made templates & document tracking features
• $11 cost saved per transaction after switching to digital signature
• Massive reduction in operational expenses by the banking sector

USA

The ESIGN Act was declared a law on 30 June 2023 and defined electronic signature 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 most significant takeaway for contract compliance is that the signature’s electronic representation must be aligned with a contract or other document and adopted by the signatory, by any act, with the intent to be bound.

Following federal preemption, ESIGN law allows esignatures in all fifty US States where the federal law applies. It means it affects people who do online business in these states. The regulation applies both to electronic signatures and electronic records. If the federal government’s law does not apply, every State has electronic signature laws, most of which follow the UETA act.

The UETA Act centres exclusively on electronic business, commercial and government contracts. Compared to the ESIGN law adopted by the US states, the UETA act followed a state-by-state basis. Every State has the power to accept or reject the guidelines present in the act. If there is a conflict between ESIGN and UETA Acts, then the state law is abidable. Right now, forty-seven states adopted UETA, excluding New York, Washington, Illinois, Columbia, Puerto Rico and the Virgin Islands.

How to check compliance with these Acts?

• There must be explicit consent to do business electronically
• Electronic signatures are valid only if parties intend to sign
• An electronic signature must be associated with the signed document
• The electronic signature must be attributable to the person signing the document
• An esigned document must be in the form of an electronic record that the recipient can retain at the delivery time.
• Presence of checks and measures to know if the document has tampered

Impact of ESIGN Act on businesses

• Revolutionized the real estate industry by eliminating clunky transactions & customer pain points
• Armed with electronic signature on tablets, field sales executives observed a 50% reduction in the average no of meetings to acquire new customers.
• HIPAA compliant eSignature in the healthcare industry made it easy to manage patient records

Impact on the banking industry

• Reduced the application time from 8 days to 24-48 hours
• Annual scanning and imaging costs decreased by $1 million
• 90 per cent reduction in document errors
• 80 per cent of document handling costs eliminated
• The entire workflow reduced to just 4 steps
• Manual back-office operations no longer required

European Union (EU)

The eIDAS act (electronic IDentification, Authentication and trust Services ), also known as Regulation (EU) No. 910/2014 is established by the European Commission to achieve a Digital single market.

It recognized three signature types as electronic signatures, Qualified electronic signatures, Advanced electronic signatures and defines

electronic signatures are “data in electronic form attached to or logically associated with other data in electronic form.”

A qualified electronic signature is an advanced electronic signature created by a suitable electronic signature creation device based on a qualified certificate for electronic signatures.

An advanced electronic signature means an electronic signature that meets the requirements set out in Article 26 of the eIDAS Act.

The purpose of this eSignature law is very clear from the first paragraph of the act “Building trust in the online environment is the key to economic and social development. Lack of trust, in particular, because of a perceived lack of legal certainty, makes consumers, businesses and public authorities hesitate to carry out transactions electronically and to adopt new services.”

The regulation seeks to enhance trust in electronic transactions by providing a common foundation for secure electronic transactions between citizens, businesses and public authorities to increase the effectiveness of private and public online services, ecommerce, online companies in the European Union.

How to check compliance with eIDAS Act?

Electronic signature: The electronic signature must be

• Applied by the person associated with the signature
• Involved in a manner that demonstrates the intent of the signer
• Associated with the document or data the signer intended to sign

Advanced Electronic Signatures (AES): It must

• Be uniquely linked to the signer
• Identify the signer
• Be under the sole control of the signer
• Detect changes to the data after the application of AES

Qualified Electronic Signature: It must be

• Created using a QES creation device
• Supported by a qualified certificate

What does the eIDAS Act mean for businesses in the EU?

The growing use of electronic Identification schemes (eIDs) will save EU businesses worth 11 Billion Euros every year. It also benefits industries throughout the EU.

Financial Sector: One of the biggest beneficiaries of this act is the financial sector allowing eIDs and trust services to use KYC for quick onboarding of the customers. Thanks to eIDAS solutions, all processes are done online in a highly secure manner.

Retail Sector: Examples of how the online retail sector uses eID and trust services:

• Customers buying restricted or high-value products use eID for thorough identification tests.
• eSignatures & etimestamps save money by streamlining the processes improving document tracking.
• Use of certified website authentication certificates to increase consumer confidence in online retail websites & prevent data phishing.

Transport Sector: Examples of how the transportation sector used eID and trust services:

• Customers use eID and trust services to prove their identity, provide a safe log-in to the service
• eTimestamps highlight transparency where several carriers are involved
• Use of eSeals on essential documents to verify their origin & integrity while reducing reliance on paper-based documents

Lunarpen eSignatures comply with all eSignature laws with strict protection and authentication standards. It is legally valid for doing all online business transactions safely and securely.

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Conclusion

We have observed and understood eSignature laws in all of these countries. If we notice, the meaning and usage of electronic signature laws are altogether the same in every part of the world. These laws are designed with only one thing in mind- to make life easier for people, cut short the steps in manual processing of services, increase digital adoption, and ensure faster alignment with everyday activities supporting tremendous business growth. eSignature laws are the stepping stones to digital transformation- your gateway to a limitless world.