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CGF ARTICLES, OPINIONS & EDITORIALS

From signets to electronic signatures (2015-03-20)

Article by Terrance M. Booysen and reviewed by Niel Maritz (MKM Attorneys: Senior Partner)

As far back as biblical times, it seems that people were also concerned with the authenticity of a person’s signature.  Although there were far fewer people in those ancient times who actually had the power, authority and means to validate official documents, most of those in positions of authority wore and used signet rings.  Signet rings were unique to that person who was permitted to sign royal proclamations, among other official documents.
Interestingly, a signet ring usually contained a unique mirror emblem, specific to its owner, and the ring was used to press its markings into the wax or clay as a seal – or mark – of that person’s approval to assure that they had personally sealed such proclamations or official documents.

Expectedly, the signet ring was seldom removed from the finger of the person who bore its authority; these people were typically from royalty, or they were politicians, wealthy citizens or religious leaders.  Signet rings (or seal rings) were therefore a person’s unique, official signature which allowed people to reasonably test (or compare) one signet compression to the next with little chances of tampering.  Needless to say, the signet ring was highly treasured as it provided various assurances to validate the ‘genuineness’ of a person and or the transaction being undertaken.

As centuries have since passed - with the advent of electronic business which is entrenched worldwide by millions of people and operates across many technological platforms -- including multi-functional mobile devices used across geographical boundaries -- it has become paramount for people to be able to validate the authenticity of the person with whom they are interacting.  In other words, it is essential to know who you are dealing with and that their signature is actually theirs and that their signature can be relied upon with little doubt or hesitation.  Before the rise of the technological era, the law in most jurisdictions required signatures to be handwritten and either witnessed, notarised or commissioned.  The reason for these requirements was to safeguard the authenticity of the signature and provide appropriate evidence should a legal dispute arise in the future.  But as technology has advanced and electronic signatures have become more popular, the methods used to sign documentation have evolved and become far more sophisticated.  It is now a commonly accepted practice in the workplace to ensure there is the required authenticity when signing and or receiving documentation electronically, and especially so if such documentation has any form of priority status.

The Oxford dictionary defines the term ‘electronic signature’ as “symbols or other data in digital form attached to an electronically transmitted document as verification of the sender’s intent to sign the document.”  If particular requirements are not specified for validity, an electronic signature could be as simple as a typed name or a digitalised image of a handwritten signature.  Whilst the terms ‘electronic signature’ and ‘digital signature’ may be similar, they may not always be used interchangeably. The term ‘digital signature is defined as “a digital code which is attached to an electronically transmitted document to verify its contents and the sender’s identity”.  Digital signatures are encrypted in order to protect its authenticity, whereas an electronic signature is not necessarily encrypted.  Interestingly, an advanced electronic signature -- unlike an electronic signature -- involves the use of a digital signature which is created with a digital certificate.  The digital certificate is provided by an accredited third party Authentication Service Provider, who has completed a face-to-face identification process with its subscriber.  Expectedly, an advanced electronic signature offers a greater degree of security than a general ‘electronic signature’ and it is for this reason that certain transactions will require accredited software before the electronic signature will be legally enforceable.

Electronic signatures may be validly used in many types of transactions and contracts and its use is subject to certain exceptions.  For example, agreements for the sale of immovable property and wills may not generally be signed electronically.  That said, electronic signatures are a valid and legally enforceable method of signing documentation in many countries, including South Africa.  However, certain requirements must be met before an electronic signature will be deemed to be valid.  Whilst the legal definitions of electronic, digital and advanced electronic signatures may vary between various legal jurisdictions, including the international conventions, it goes without saying that organisations need to be up-to-date with these variances and extremely vigilant in order to determine the validity of a person’s so-called ‘authority’ which underpins electronic documentation.

 

 
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