Validity and enforceability of Electronic and Digital Signatures

COVID-19 has shaped how businesses approach the practicalities and legalities around electronic signatures in documents. Generally, contracts can be executed via electronic signatures. The processes are set out in the Electronic Transactions Act 1999 (Cth) and Electronic Communications Act 2000 (SA).

Difference between E-signatures and D-signatures

Generally, E-signature (electronic signature) is an ink signature that has been scanned into an electronic system to be copied and pasted into future documents. D-signature (digital signature) on the other hand, is akin to an “electronic fingerprint” or “identity”. It is made when each signatory “signs” a different version of the document and the signature is produced once “signing” has been completed. It is an authentication mechanism that enables the signatory to create a series of unique tracking numbers and location data forming a code that acts as a signature.

Exclusions of the use of E-signatures or D-signatures

1. Common seal

A common seal affixed by the Council must be witnessed and electronic signatures may not be possible.

2. Signatures requiring witnesses

In situations where a witness’ signature is legally required, electronic signature should not be used on the documents.

3. Deeds

Deeds are documents containing a binding promise or commitment by one party in favour of another party. Some of the common deeds include trust deeds, indemnity deeds, security deeds and deeds of guarantee. If an individual executes a deed, it is a requirement for the deed to be signed in the presence of a witness who is not a party to the deed. In South Australia, it is not possible or permissible to validly execute deeds electronically.

Note : The Covid-19 Emergency Response Act 2020 (SA) allows for modification of preparation, signing, witnessing, attestation, certification, stamping or other treatment of any document.

If you require advice relating to E-signatures, D-signatures or the validity of your documents containing such signatures, HandO Lawyers are here to help. We are now offering online services in both English and Chinese.

Simply book an online consultation with us via this link: https://straits-lawyers.square.site/product/online-consultation-/11?cs=true or email us at info@holawyers.com or call at 08 8410 9069 to arrange an appointment.

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Please note that this article does not constitute legal advice and HandO Lawyers will not be legally responsible for any actions you take based on this article.