Coronavirus (Covid-19): Latest updates and information
Skip to main content Skip to navigation

Footnotes

1. Authors have examined specific issues, such as the signing of wills and deeds by the use of a mark (Meston & Cusine, 'Execution of Deeds by a Mark' (1993) JLSS 270), the effectiveness of signatures on faxed indictments (Queries (1993) 157 JP 736), electronic signatures of international trade documents (Economic Commission for Europe, Committee on the Development of Trade Working Party of Facilitation of International Trade Procedures, 'Review of definitions of 'Writing', 'Signatures' and 'Document' employed in multilateral conventions and agreements relating to international trade' [1998] 5 EDI LR 3) and signatures of telexes (Smith, 'Electronic Signatures' [1996] 2 CTLR T-17). However, no detailed analysis of English law's basic requirements for a valid signature appears to have been undertaken, although some short articles on digital signatures do make reference to these matters - see e.g. Davies, 'Legal aspects of digital signatures' (1995) 11 CL&P 165..

2. For ease of reading 'he' and 'his' are used hereafter to stand for 'he/she' and 'his/her', following the convention used for statutory drafting.

3. This distinction of 'paper document' is important, as will be seen below. The legal concept of document is extremely wide, extending to such things as photographs of tombstones and houses (Lyell v. Kennedy (No 3) (1884) 27 Ch D 1), account books (Hill v. R. [1945] KB 329) and drawings and plans (Hayes v. Brown [1920] 1 KB 250; J. H. Tucker & Co., Ltd. v. Board Of Trade [1955] 2 All ER 522). For evidential purposes in civil actions, a document is 'anything in which information of any description is recorded' (Civil Evidence Act 1995 s.13).

4 . Baker v. Dening (1838) 8 A&E 94.

5. Hill v. Hill [1947] Ch 231.

6. Redding, in re (1850) 14 Jur 1052, 2 Rob. Ecc. 339.

7. Cook, In the Estate of (Deceased). Murison v. Cook and Another [1960] 1 All ER 689 (holograph will signed 'your loving mother').

8. Brydges v. Dix (1891) 7 TLR 215; France v. Dutton, [1891] 2 Q.B. 208. Typewriting has also been considered in Newborne v. Sensolid (Great Britain), Ltd. [1954] 1 QB 45.

9. Lazarus Estates, Ltd. v. Beasley [1956] 1 QB 702; London County Council v. Vitamins, Ltd., London County Council v. Agricultural Food Products, Ltd. [1955] 2 QB 218.

10. See parts 0, 0, 0 and 0 below.

11 . See Clipper Maritime Ltd v. Shirlstar Container Transport Ltd (the 'Anemone') [1987] 1 Lloyd's Rep 546 (telex) discussed further at part below; In re a debtor (No 2021 of 1995) [1996] 2 All ER 345 (fax) see notes and .

12. The point was considered obiter in In re a debtor (No 2021 of 1995) [1996] 2 All ER 345, 351 where Laddie J. considered the example of a fax created on a personal computer using a scanned signature and sent by fax modem. The fax received at the remote station might well be the only hard copy of the document. The judge was of the view that such a document would have been 'signed' by the author. However, the judge did not consider the possibility that the received version of the fax might be viewed on screen only and never printed out.

13. The term 'document' is used here in a very broad sense. The definition in Civil Evidence Act 1995 s.13 of a document as 'anything in which information of any description is recorded' would mean that, for evidential purposes, a transmission of data would not consist of a document, but rather that the several recordings on magnetic media during the transmission process would all be documents (or perhaps copies of the same document). Many other statutory definitions, however, define 'document' as, inter alia, a 'record kept by means of a computer' (see e.g. s. 40 Finance Act 1993). For the purposes of this article, any discrete set of digital information will be treated as a document provided it performs the essential function of conveying information - see Grant and another v. Southwestern and County Properties Ltd and another [1975] Ch 185.

.For a more detailed analysis of the concept of 'document' see Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapter 1.

14. The term 'digital signature' is not used here because it has gained a particular technical meaning, viz. the use of asymmetric encryption techniques to authenticate the sender of an electronic document and the document's integrity - see part below. The term is also becoming identified with a particular implementation of encryption technology as defined in ANSI X.509.

15. The American Standard Code for Information Interchange is used for most microcomputer communication. Each 8-bit binary word represents a letter of the alphabet or some control or graphics character. For example, in ASCII code A=decimal 65, a=decimal 97, carriage return=decimal 13 etc. EBCDIC (Extended Binary Coded Decimal Interchange Code) is the proprietary format used in IBM mainframes and minicomputers. See Cornwall, Hacker's Handbook III (London 1988) pp. 10-14 and Appendix IV.

16. See e.g. American Bar Association, Model Electronic Data Interchange Trading Partner Agreement (American Bar Association 1990) § 1.5:

'Each party shall adopt as its signature an electronic identification consisting of symbol(s) or code(s) which are to be affixed to or contained in each Document transmitted by such party ('Signatures'). Each party agrees that any Signature of such party affixed to or contained in any transmitted Document shall be sufficient to verify such party originated such Document.'

See further Baum & Pettit, Electronic Contracting, Publishing and EDI Law (John Wiley & Sons Inc.: New York 1991) § 2.16. See also Trading Partner Agreement to Authorize EDI for Defense Transportation (Logistics Management Institute: Bethesda, Maryland 1990) § XIV:

'Vendor will use a code as specified in each transaction set addendum as its discrete authenticating code in lieu of signature and as the equivalent of a signature.'

17.This estoppel will arise even if the parties know that their agreed electronic signature technology is ineffective as a matter of law:

'The full facts may be known to both parties; but if, even knowing those facts to the full, they are clearly enough shown to have assumed a different state of facts as between themselves for the purposes of a particular transaction, then their assumption will be treated, as between them, as true, in proceedings arising out of the transaction. The claim of the party raising the estoppel is, not that he believed the assumed version of the facts was true, but that he believed (and agreed) that it should be treated as true.'

Spencer Bower & Turner, The Law Relating to Estoppel by Representation (3rd, Butterworths: London 1977) p. 160, citing Newis v General Accident Fire & Life Assurance Corporation (1910) 11 CLR 620 at p. 636 per Isaacs J. (High Court of Australia). See also TCB Ltd. v. Gray [1986] Ch 621 (estoppel relating to the absence of a seal on a deed).

18. See e.g. Swallow & Pearson v Middlesex County Council [1953] 1 All ER 580 (in respect of the formality of writing). An estoppel can arise, however, if the requirement for a signature is imposed by the law solely to protect the parties to the transaction, as opposed to the public interest – see Spencer Bower & Turner, The Law Relating to Estoppel by Representation (3rd, Butterworths: London 1977) pp. 142-4.

19. See e.g. Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1994 (SI 1994 No 3159) which provides that unfair terms are not binding on the consumer. A term of this kind might fall within Sch. 3 para. 1(q) as 'excluding or hindering the consumer's right to take legal action or exercise any other legal remedy...'.

20. No legislation has been found during the course of researching this article which expressly limits valid signatures to those exhibiting particular characteristics of form.

21. in re Hinds 16 Jur 1161, in re Savory 15 Jur 1042 (signature of wills); Hill v. Hill [1947] Ch 231 (signature of contract).

22. in re Clarke 27 LJPM&A 18 (illiterate testator made his mark on will but wrong name written against the mark - extrinsic evidence admitted to show true identity of maker of mark); in re Field 3 Curt 752; Baker v. Dening 8 A&E 94 (signature valid even though signatory could write his name).

23. in re Doe d. Phillips v. Evans 2 LJ Ex 193 (signature by seal valid for purposes of Insolvency Act); in re Byrd 3 Curt 117 (signature by seal invalid for purposes of Wills Act).

24. Schneider v. Norris 2 M&S 286.

25. Schneider v. Norris 2 M&S 286 (obiter per Le Blanc J at p. 289).

26. See further part 0 below.

27. Water Resources Act 1991 Sch 4, Part II. See also Building Act 1984 s. 93; Food Safety Act 1990 s. 49; Greater London Council (General Powers) Act 1967 s. 5; Highways Act 1980 s. 321; Local Government Act 1972 s. 234; London Building Acts (Amendment) Act 1939 s. 122; Public Health (Control of Disease) Act 1984 s. 59; Public Health Act 1936 s. 284; Water Act 1945 s. 55; Water Authorities (Appointments, etc.) Regulations 1983 (SI 1983 No 1318) reg. 7.

28. Jowett's Dictionary of English Law (2nd. Sweet & Maxwell: London 1977).

29. This is the view taken by Goode and Bergsten in 'Legal questions and problems to be overcome' in Thomsen & Wheble, Trading with EDI: the Legal Issues (IBC: London 1989) pp. 136-8.

30. Which should be legally effective, following the reasoning in In re a debtor (No 2021 of 1995) [1996] 2 All ER 345. In that case the court had to decide whether a signed proxy form transmitted by fax was valid under Part 8 of the Insolvency Rules 1986, which required that a form of proxy be signed. The judge held that the form was validly signed if it bore upon it some distinctive and personal marking placed there by, or with the authority of, the creditor. The receiving fax machine was in effect instructed by the transmitting creditor to reproduce his signature on the proxy form, and the received fax was thus a signed proxy form. Note that here the sender had in fact placed a manuscript signature on a physical copy of the form before faxing it, but the judge considered obiter that the same reasoning would apply to a case where the form had been reproduced as a word processing document and a scanned signature inserted at the appropriate point.

However, the Scots courts have taken a different view. In McIntosh v. Alam (1998) SLT (Sh Ct) 19 the question arose whether a fax agreeing to buy a piece of land complied with s. 2 Requirements of Writing (Scotland) Act 1995, which requires the document to be 'subscribed by the grantor of it'. Sir SST Young held (at p. 21) that the fax had not been signed by the sender, but merely bore a copy of his signature, and therefore did not comply with s. 2. However, the fax was evidence that the 'original' had been signed, and it was not necessary for the original version to be sent to the other party to conclude the contract but merely for its existence and contents to be communicated to him. Thus in Scotland the effective version is the sent version, rather than that received, at least for fax communications.

31. The point was considered obiter in In re a debtor (No 2021 of 1995) [1996] 2 All ER 345, 351 where Laddie J. considered the example of a fax created on a personal computer using a scanned signature and sent by fax modem. The fax received at the remote station might well be the only hard copy of the document. The judge was of the view that such a document would have been 'signed' by the author. However, the judge did not consider the possibility that the received version of the fax might be viewed on screen only and never printed out.

32. See e.g. Wills Act 1837 s. 9 (as amended by Administration of Justice Act 1982 s. 17); Drug Trafficking Offences Act 1986 (Designated Countries and Territories) Order 1990 (SI 1990 No 1199) reg. 8 (written certificate purporting to be signed by any person acting in his capacity as an officer of any bank in the United Kingdom and stating the exchange rate prevailing on a specified date shall be admissible as evidence of the facts so stated); Merger (Prenotification) Regulations 1990 (SI 1990 No 501) reg. 13 (authorisation to act on behalf of a company may be revoked by signed notice in writing). Further examples may be found in Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapter 5.

33. Indeed, a small number of statutory provisions appear specifically to include electronic documents as writings - see Copyright, Designs and Patents Act 1988, s. 178 (but only in relation to the question of whether a work has been recorded for the purposes of s. 3(2) - cf. ss. 78(2)(b), 87(2), 90(3), 92(1) in relation to notices, assignments or licences); Sexual Offences (Amendment) Act 1992 s. 6; Sexual Offences (Amendment) Act 1976 s. 4; Electricity Supply Regulations 1988 (SI 1988 No 1057), reg. 34(e); Merger (Prenotification) Regulations 1990 (SI 1990 No 501) regs. 5, 7(1), 8 and 9

34. Even on the most favourable construction of the definition, assuming that it is possible to detect the state of a particular part of the recording medium using a suitable microscope, what is detected is not a visual representation or reproduction of words but merely a set of on-off states, which only represent words once a number of coding conventions are accepted (if read under different coding conventions, the result would be different letters, numbers or symbols). By contrast, when in 1990 the IBM logo was engraved on the surface of a crystal in letters 5 nanometres high, using a scanning tunnelling electron microscope to move individual xenon atoms (Fortune Magazine October 8 1990 p. 56), that did amount to writing (assuming 'visible form' includes words visible when magnified). So would a microform copy of a document (provided the document contained words and not merely pictures). Note, however, that this will only be the case if there is no statutory provision to the contrary - for example, s. 9 Bankers' Books Evidence Act 1879 (as amended) makes a distinction between 'writing' and microfilm.

35. Though such an approach would appear to prevent many Electronic Data Interchange communications from being writings, as they consist solely of alphanumeric codes and not words - see e.g. Walden (ed.), EDI and the Law (Blenheim: London 1989) Appendix E; Hill, EDI and X.400 using Pedi (Technology Appraisals: Trowbridge 1990).

36. [1993] 3 All ER 641.

37. [1993] 3 All ER 641, 646.

38. All digital information which represents alphanumeric symbols is capable of being displayed as the relevant symbols in visible form. However, it is stored in binary form, and in that manifestation it is not writing. Digital information, chimera-like, is capable of becoming and ceasing to be writing in microseconds. It is therefore important to know precisely which manifestation of the electronic document containing the information the law is to be applied to - see note .

39 . For a few years at least. However, the technology to produce a portable, digital licence incorporating a photograph already exists.

40. 'It has always been recognised that, certainly in some statutes, the context may demand a personal signature, cf. Hyde v. Johnson, and I conceive that, even apart from statute, the context is a matter to be taken into consideration. For myself I can see nothing in the context here which requires an exception to be made to the common law rule.' per Parker LJ construing a contractual requirement for a signature in London County Council v. Vitamins, Ltd., London County Council v. Agricultural Food Products, Ltd. [1955] 2 QB 218, 226. Interestingly, no case has been found where the courts have held that the context of the transaction, as opposed to the words of the statute, required a personal signature.

41. The clearest explanation of the reasons why a personal signature might be required is that given by Denning LJ in his dissenting judgment in Goodman v. J. Eban Ltd. [1954] 1 QB 550, 561:

'In modern English usage, when a document is required to be 'signed' by someone, that means that he must write his name with his own hand on it. It is said that he can in law 'sign' the document by using a rubber stamp with a fac-simile signature. I do not think this is correct - at any rate, not in the case of a solicitor's bill. Suppose he were to type his name or to use a rubber stamp with his name printed on it in block letters, no one would then suggest that he had signed the document. Then how does the fac-simile help it? Only by making it look as if he had signed it, when in fact he had not done so. It is the verisimilitude of his signature, but it is not his signature in fact. If a man cannot write his own name, he can 'sign' the document by making his mark, which is usually the sign of a cross, but in that case he must make the mark himself, and not use a typewriter, or rubber stamp, or even a seal. The virtue of a signature lies in the fact that no two persons write exactly alike, and so it carries on the face of it a guarantee that the person who signs has given his personal attention to the document. A rubber stamp carries with it no such guarantee, because it can be affixed by anyone. The affixing of it depends on the internal office arrangements, with which the recipient has nothing to do. This is such common knowledge that a 'rubber stamp' is contemptuously used to denote the thoughtless impress of an automaton in contrast to the reasoned attention of a sensible person.'

42. Thus in Blucher (Prince), in re, Ex p. Debtor, [1931] 2 Ch. 70, sub nom. Blucher (Prince), Re, Debtor v. Official Receiver, 100 L.J. Ch. 292, 144 L.T. 152 a personal signature was required because s. 16(1) Bankruptcy Act required a scheme of composition in bankruptcy to be 'signed by him', i.e. the debtor. In R v. Cowper, (1890) 24 Q.B.D. 533, 59 L.J.Q.B. 265, 13 Digest 492, 427 the words of CCR 1889 Ord. 6 r. 10 required that the document in question had 'actually come under the personal cognizance of the solicitor and had been adopted by him', and thus although the lithographed signature showed that it came from his office, it did not show these required facts. In Hyde v. Johnson, (1836), 2 Bing. N.C. 776, 5 L.J.C.P. 291, 132 E.R. 299, 1 Digest 276, 86 where the defendant's wife had acknowledged a statute-barred debt, signing in her husband's name, the court held that the relevant statute (s. 1 of 9 G. 4 c. 14) used the same words as that part of the Statute of Frauds which did not permit signature by an agent, and thus the acknowledgement required a personal signature and was not validly signed.

A number of statutes and Statutory Instruments currently in force contain wording which appears to demand a personal signature. These include: Trade Marks Rules 1994 (SI 1994 No 2583) rule 46; s 82 (Form TM33); Child Support Appeal Tribunals (Procedure) Regulations 1992 (SI 1992 No 2641) reg. 3; Family Proceedings Rules 1991 (SI 1991 No 1247) rules 2.2, 2.10; Companies (Forms Amendment No 2 and Company's Type and Principal Business Activities) Regulations 1990 (SI 1990 No 1766) Sch 2, Form 10; Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989 (SI 1989 No 1212) Sch 2, Forms A & B; County Court (Forms) Rules 1982 (SI 1982 No 586) Schedule, Form N117 General Form of Undertaking Order 29, rule 1(a); Imprisonment and Detention (Air Force) Rules 1980 (SI 1980 No 2005) Sch 1, Part I Forms 1-11; Imprisonment and Detention (Army) Rules 1979 (SI 1979 No 1456) Sch 1, Part I Forms 1-11; Conveyance by Rail of Military Explosives Regulations 1977 (SI 1977 No 889) reg. 7; Practising Certificate Regulations 1976, Schedule, Form PCR2.

43. 'It has always been recognised that, certainly in some statutes, the context may demand a personal signature, cf. Hyde v. Johnson, and I conceive that, even apart from statute, the context is a matter to be taken into consideration. For myself I can see nothing in the context here which requires an exception to be made to the common law rule.' per Parker LJ construing a contractual requirement for a signature in London County Council v. Vitamins, Ltd., London County Council v. Agricultural Food Products, Ltd. [1955] 2 QB 218, 226. Interestingly, no case has been found where the courts have held that the context of the transaction, as opposed to the words of the statute, required a personal signature.

44. [1954] 1 QB 550.

45. [1995] 1 WLR 1567.

46. [1995] 1 WLR 1567 at p. 1575 per Peter Gibson LJ, adopting the formulation of Denning LJ in Goodman v. J. Eban, Ltd. [1954] 1 QB 550, 561-2 - see note .

47. (1855) 16 CB 517, 535.

48. See also Baker v. Dening (1838) 8 A&E 94; in re Field 3 Curt 752; in re Clarke 27 LJPM&A 18.

49. 29 LJPM&A 71.

50. For example, in Goodman v. J. Eban, Ltd. [1954] 1 QB 550, 557 Sir Raymond Evershed MR adopted the definition in the Shorter Oxford English Dictionary, 2nd ed., vol. 2, p. 1892: '(ii) to place some distinguishing mark upon (a thing or person)... (iv) to attest or confirm by adding one's signature; to affix one's name to (a document, etc.).' See also R v. Moore, ex parte Myers (1884) 10 VLR 322.

51. Note, though, that the term 'instrument' is normally used only to mean a hard copy document, and that in respect of dealings in land ss. 2(1) and 2(3) of the Act require a signed writing, which again must be a hard copy document - see further Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapters 1 and 4. It is not conclusive, then, that signatures of non-hard copy documents also require a mark.

52. (1612) 9 Co. Rep. 866.

53. Fifoot, History and Sources of the Common Law (Stevens & Sons Ltd.: London 1949) p. 360, discussing Pinchon's case (1612) 9 Co. Rep. 866 in which an oral agreement was enforced against the deceased's personal representatives.

54. Salmond, 'The Superiority of Written Evidence' (1890) 6 LQR 75.

55. Pillans v. Van Mierop (1765) 3 Burrows 1663. Lord Mansfield said, 'I take it that the ancient notion about the want of consideration was for the sake of evidence only; for when it is reduced into writing, as in covenants, specialties, bonds, etc., there was no objection to the want of consideration. And the Statute of Frauds proceeded upon the same principle.' See also Williamson v. Losh (1775) Langdell's Cases on Contract (1871) p. 180 in which an unsigned promissory note was held enforceable merely because it was in writing.

56. Rann v. Hughes (1778) 4 Brown PC 27, 7 TR 350, followed in later cases such as Terrell v. Secretary of State for the Colonies and Others [1953] 2 QB 482.

57.[1954] 1 QB 550.

58.As required by s. 65(2)(i) Solicitors Act, 1932, the legislation then governing solicitors' bills, which provided:

'(1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor until one month after a bill thereof has been delivered in accordance with the requirements of this section...

(2) The said requirements are as follows: (i) The bill must be signed by the solicitor, or, if the costs are due to a firm, one of the partners of that firm, either in his own name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill...'.

59. [1954] 1 QB 550, 557.

60. [1954] 1 QB 550, 563.

61. See also Bartletts de Reya (A Firm) v. Byrne (1983) The Times 14 January, 127 SJ 69, Court of Appeal (Civil Division).

62. Beauvais v. Green 22 TLR 816; Bennett v. Brumfitt (1867) L.R. 3 C.P. 30; British Estate Investment Society, Ltd. v. Jackson (H.M. Inspector of Taxes) [1956] TR 397, 37 Tax Cas 79, 35 ATC 413, 50 R&IT 33, High Court of Justice (Chancery Division); Lazarus Estates, Ltd. v. Beasley [1956] 1 QB 702; London County Council v. Vitamins, Ltd., London County Council v. Agricultural Food Products, Ltd. [1955] 2 QB 218

63. Brydges v. Dix (1891) 7 TLR 215; France v. Dutton, [1891] 2 Q.B. 208.

64. Newborne v. Sensolid (Great Britain), Ltd. [1954] 1 QB 45.

65. In Jenkins v. Gaisford & Thring, In the Goods of Jenkins (1863) 3 Sw. & Tr. 93 a testator made his signature on a codicil to a will using an engraved stamp of his signature which had been made because an illness had left him too weak to write. The stamp was applied by a servant in the testator's presence and under his direction. The court held that the codicil was validly signed under the Statute of Wills s. 9 (1 Vict. c. 26). Sir C. Cresswell said, 'It has been decided that a testator sufficiently signs by making his mark, and I think it was rightly contended that the word 'signed' in [s. 9] must have the same meaning whether the signature is made by the testator himself, or by some other person in his presence or by his direction... The mark made by the instrument or stamp was intended to stand for and represent the signature of the testator.' ((1863) 3 Sw. & Tr. 93 at p. 96, emphasis added). In later cases, signature by an agent has been held to be valid even though not made in the presence of the signatory (R v. Kent JJ. (1873) L.R. 8 Q.B. 305; London County Council v. Vitamins, Ltd., London County Council v. Agricultural Food Products, Ltd. [1955] 2 QB 218; Tennant v. London County Council (1957) 55 LGR 421) or if not specifically authorised but made under a general authority to sign on behalf of the principal (France v. Dutton, [1891] 2 Q.B. 208).

66. Baker v. Dening (1838) 8 A&E 94; Field, in re 3 Curt 752. In Clarke, in re 27 LJPM&A 18, an illiterate testator made his mark on the will, but the wrong name was written against the mark. Extrinsic evidence was permitted to show the true identity of the maker of the mark. See also Morton v. Copeland (1855) 16 CB 517, 535 per Maule J, who said that signing 'does not necessarily mean writing a person's Christian and surname, but any mark which identifies it as the act of the party.'

67. Redding, in re (1850) 14 Jur 1052, 2 Rob. Ecc. 339, where the testator executed a will in the assumed name of the man with whom she was cohabiting and two years later erased that signature and re-signed in her real name. The court held that probate could be granted in the first name because the second signature, while not itself valid as execution, was not intended to revoke the will but merely to clarify her identity. See also Hill v. Hill [1947] Ch 231 (initials); Cook, In the Estate of (Deceased). Murison v. Cook and Another [1960] 1 All ER 689 (holograph will validly signed 'your loving mother'); Rhodes v. Peterson (1972) SLT 98 ('Mum' a valid signature under Scots law).

68. The English legislative corpus contains over 6,000 references to signatures, and so a Lexis search was used to identify signature definitions and requirements for the years 1950,1955 and 1990. These years were chosen as providing a reasonably representative sample of legislation which bracketed the period when the use of computers became commonplace. The results of this survey are examined in detail in Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapter 5.4.

69. E.g. Army Act 1955 s. 200(1) (The original proceedings of a court-martial purporting to be signed by the president of the court and being in the custody of the Judge Advocate General or of any person having the lawful custody thereof to be admissible in evidence on production from that custody), s. 204(2) (Document purporting to have subscribed thereto the signature of an authorised officer in testimony of an affidavit or declaration to be admitted in evidence without proof of the signature being the signature of that officer or of the facts so stated).

70. E.g. Coal Industry (Superannuation Scheme) (Winding Up, No 8) Regulations 1955 (SI 1955 No 281) reg. 2(3) (Certificate, signed by the secretary of the principal scheme and by any person in whom was vested any property or right transferred by virtue of this regulation, that that property or right was so transferred, is evidence that the property or right was transferred as aforesaid); Computer Misuse Act 1990 s. 11(4) (Certificate signed by or on behalf of the prosecutor and stating the date on which evidence sufficient in his opinion to warrant the proceedings came to his knowledge to be conclusive evidence of that fact).

71. Distribution of German Enemy Property (No 1) Order 1950 (SI 1950 No 1642) para. 10 (Every document purporting to be a document duly executed or issued under the seal of the Administrator authenticated as aforesaid or purporting to be signed by the Administrator or any person authorised to act on his behalf shall, until the contrary be proved, be deemed to be a document so executed or issued or so signed as the case may be); Computer Misuse Act 1990 s. 11(5) (Certificate stating the matter set out in sub-section (4) and purporting to be so signed shall be deemed to be so signed unless the contrary is proved).

72. E.g. British Wool Marketing Scheme (Approval) Order 1950 (SI 1950 No 1326) s. 19 (Document or proceedings requiring authentication by the Board may be signed by a member of the Board, Secretary or other person authorised by the Board); Food Safety Act 1990 s. 49 (Any document which a food authority is authorised or required by or under the Act to give, make or issue may be signed on behalf of the authority, and any document purporting to bear the signature (including a facsimile) of an appropriate officer shall be deemed to be authentic).

73. E.g. Potato Marketing Scheme (Approval) Order 1955 (SI 1955 No 690) Scheme para 14 (Voting paper not to be counted unless it is properly signed); London Local Authorities Act 1990 s. 25 (Application for street trading licences to be accompanied by photographs of applicant signed on the reverse).

74. SI 1990 No 767.

75. See e.g. the extensive signature requirements of the Potato Marketing Scheme (Approval) Order 1955 (SI 1955 No 690).

76. Saunders v. Anglia Building Society [1971] AC 1004.

77. Extrinsic evidence has been admitted to link marks and identifying phrases with alleged signatories - Baker v. Dening (1838) 8 A&E 94; Field, in re 3 Curt 752; Clarke, in re 27 LJPM&A 18; Redding, in re (1850) 14 Jur 1052, 2 Rob. Ecc. 339; Hill v. Hill [1947] Ch 231; Cook, In the Estate of (Deceased). Murison v. Cook and Another [1960] 1 All ER 689.

78.This intention is presumed when the signatory's own name is used as part of an accepted signature method - L'Estrange v. Graucob [1934] 2 KB 394.

79. (1860) 29 LJPM&A 114.

80. (1817) 3 Mer 2.

81. (1817) 3 Mer 2, 6. See also Durrell v. Evans (1862) 1 H&C 174, 191 per Blackburn J.

82. (1980) 124 SJ 201, 10 Legal Decisions Affecting Bankers 206, Court of Appeal (Civil Division).

83. (1982) 133 NLJ 555, Court of Appeal (Civil Division).

84. Art. 2(1) Signaturgesetz (Informations- und Kommunikationsdienste-Gesetz (Federal Act Establishing the General Conditions for Information and Communication Services) Article 3) of 1 August 1997.

85. (1681) 3 Lev. 1 per North, Wyndham and Charlton JJ.

86 . Though in Emerson, in the goods of (1882) 9 LR Ir. 443 the court held that, although a seal was not itself a valid form of signature for a will, the particular form of seal adopted was sufficient to amount to a signature. In that case the testator, in the presence of two subscribing witnesses, affixed a seal stamped with his initials to a will, placed his finger on the seal and said, 'This is my hand and seal'. The court held that the will was validly signed – a seal of itself was not sufficient, but a mark (such as the initials in the instant case) would be sufficient if it was intended to represent a signature, and there was evidence that it was so intended by the testator.

87. Warneford v. Warneford (Easter 13 Geo I) 2 Str. 764. See also Gryle v. Gryle (1741) 2 Atk. 176 per Hardwicke LC.

88. Grayson v. Atkinson (1752) 2 Ves. Sen. 454, 459 per Hardwicke LC, reversing his previous opinion in Gryle v. Gryle (1741) 2 Atk. 176. See also Smith v. Evans (1754) 1 Wils. 313; Ellis v. Smith (1754) 1 Ves. Jun. 11 at p. 13 per Willes CJ and p. 15 per Sir John Strange MR.

89. Wright v. Wakeford (1811) 17 Ves. Jun. 454.

90. The execution of a deed requires both sealing and a signature or mark - Halsbury's Laws of England (4th) Vol. 12 para. 1328.

91. Army Act 1955 s. 57 Offences in relation to courts-martial (Court martial acting as summary court may sentence the offender by order under the hand of the president); Community Charges (Deductions from Income Support) (No 2) Regulations 1990 (SI 1990 No 545) Sch 2 (The determination of a Commissioner on an application for leave to appeal or decision on the appeal shall be in writing and signed by him); Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290) reg. 30 (Tribunal may review or set aside, by certificate under the hand of the presiding member, certain decisions); Foreign Compensation Act 1950 s. 5 (Chairman of the Commission may certify the offence of a person under his hand to the High Court, and the court may thereupon inquire into the alleged offence and may punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court); Friendly Societies Appeal Tribunal Regulations 1993 (SI 1993 No 2002) reg. 20 (Clerical mistakes in certain documents may at any time be corrected by the chairman by certificate under his hand); Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (SI 1993 No 2687) Schs. 1, 2, 3 & 4 (Clerical mistakes in certain documents may at any time be corrected by the chairman by certificate under his hand); Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 291) reg. 45 (Tribunal may review or set aside, by certificate under the hand of the presiding member, certain decisions); Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal) Regulations 1993 (SI 1993 No 2408) reg. 11 (Clerical mistakes in certain documents may at any time be corrected by the chairman by certificate under his hand).

92. Inspection of Churches Measure 1955 (No 1) s. 1(4) (Any scheme for inspection of churches made in pursuance of this section and passed at a meeting of the Diocesan Conference shall be signed by the Chairman of that meeting and shall come into operation as from the date on which it is so signed); Marketing (Reorganisation Commission) Regulations 1950 (SI 1950 No 1869) reg. 12 (A Commission shall cause minutes of its proceedings to be kept in a Minute Book and such minutes shall be signed by the Chairman, or, in the absence of the Chairman, by the deputy for the Chairman at the meeting at which they are approved as correct).

93. Army Act 1955 s. 202 (Temporary detention in civil custody requires delivery of a written order purporting to be signed by the commanding officer of the person in custody). See also Dairy Produce Quotas Regulations 1993 (SI 1993 No 923) Sch. 1 (County court judge may issue an order under his hand for bringing up before the arbitrator any prisoner to be examined as a witness).

94. Army Act 1955 s. 129 Duties of governors of prisons and others to receive prisoners (Duty arises on receipt of a written order in that behalf purporting to be signed by that person's commanding officer); Army Act 1955 s. 86(1) (A general court-martial may be convened by any qualified officer authorised by Her Majesty by warrant under Her sign manual to convene general courts-martial).

95. Army Act 1955 s. 10(1) (Order, signified under the hand of the Secretary of State, may provide that soldiers who would otherwise fall to be transferred to the reserve shall continue in army service).

96. Clean Air Act 1993 s. 56 (Justice of the peace may by warrant under his hand authorise entry onto premises to exercise inspection powers); Environmental Protection Act 1990 Sch 3 (In emergency and other specified circumstances, a justice may by warrant under his hand authorise the local authority by any authorised person to enter the premises, if need be by force); Food Safety Act 1990 s. 32 (Justice may by signed warrant authorise entry on to premises; Radioactive Substances Act 1993 Sch. 2 (Justice of the peace may by warrant under his hand authorise entry onto premises to exercise inspection powers).

97. Bass (Specified Areas) (Prohibition of Fishing) Order 1990 (SI 1990 No 1156) reg. 3 (Detention of boat by notice in writing stating that the boat will be or is required to be detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea-fishery officer); Criminal Justice (International Co-operation) Act 1990 Sch. 3 (If an enforcement officer detains a vessel he shall serve on the master a notice in writing stating that it is to be detained until the notice is withdrawn by the service on him of a further notice in writing signed by an enforcement officer).

98. The best known transactions which require a signature are: dealings in interests in land (Law of Property (Miscellaneous Provisions) Act 1989 s. 2, repealing and replacing s. 40 Law of Property Act 1925; the issue and transfer of bills of exchange (Bills of Exchange Act 1882 ss. 3, 17, 32, 62 & 83); contracts of marine insurance (Marine Insurance Act 1906 ss. 22-24); and contracts of guarantee (Statute of Frauds 1677 s. 4)

99. Though distinctly rare. For example, there are no consumer signature requirements in the Unfair Contract Terms Act 1977, the Unfair Terms in Consumer Contracts Regulations 1994 (SI 1994 No 3159, 8 December 1994, implementing the Council Directive on Unfair Terms in Consumer Contracts 93/13/EEC, OJ L 95 April 21 1993, which itself contains no signature requirements), the Financial Services Act 1986 or the Consumer Protection Act 1987. A review of all the statutory reference to signing or signature for the years 1950, 1955 and 1990 did not reveal a single provision whose purpose could be described as consumer protection - Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapter 5.

100. See for example, Consumer Credit Act 1974 ss. 61(1), 127(3) (regulated agreement not enforceable against consumer unless signed in prescribed form or some other document containing all the prescribed terms has been signed).

101. See Lindberg, Electronic Documents and Electronic Signatures part 4.2 (Institute of Legal Informatics, Faculty of Law, University of Stockholm: undated).

102. See Cranston, Consumers and the Law (2nd Weidenfeld & Nicholson: London 1984) Chs. 8-12; Crowther Report on Consumer Credit (HMSO 1971, Cmnd. 4596) para. 6.3.1.

103. Thus none of the proposals made to the Molony Committee suggested that signatures might perform a consumer protection function (Report of the Committee on Consumer Protection (HMSO 1962, Cmnd. 1781 para. 48) and the Crowther Report on Consumer Credit (HMSO 1971, Cmnd. 4596) makes only one recommendation for the imposition of a signature requirement (para. 5.6.1 recommends that a security interest should not be enforceable against the debtor or third parties unless, inter alia, it is evidenced by a memorandum in writing signed by or on behalf of the debtor).

104. Ramsay, Consumer Credit (Weidenfeld & Nicholson: London 1989) pp. 67-70; Cranston, Consumers and the Law (2nd Weidenfeld & Nicholson: London 1984) pp. 278-80. The Crowther Report on Consumer Credit (HMSO 1971, Cmnd. 4596) para. 6.5.6 suggests that no particular form requirements should be imposed on consumer credit transactions, but that instead the relevant issue should be whether the document embodying the transaction contains the statutorily required information.

105. E.g. Consumer Credit Act 1974 ss. 49(2) (offence to solicit making an agreement in a visit if, inter alia, the consumer had not requested the visit via a signed writing) and 51 (offence to give a credit token unless it was requested via a signed document).

106. Cranston, Consumers and the Law (2nd Weidenfeld & Nicholson: London 1984) p. 69, citing Slawson, 'Standard Form Contracts and Democratic Control of Lawmaking Power' (1971) 84 Harv. L. Rev. 529.

107. This is reflected in the jargon of the computer industry which often refers to 'logical' entities, meaning entities which are treated by the technology as a single item even though they may be stored on or transmitted via multiple hardware devices, or may exist in multiple copies.

108. However, it is perfectly possible for the law to impose logical requirements of form. To date, the only requirement of form proposed for electronic signatures is that their validity should depend on compliance with particular technical standards. See e.g. Utah Digital Signature Act Rules, Utah Administrative Code Rule R154-10, made under the Utah Digital Signature Act (Utah Code Annotated Title 46, Chapter 3 (1996)); German Digital Signatures Act (Signaturgesetz (Informations- und Kommunikationsdienste-Gesetz (Federal Act Establishing the General Conditions for Information and Communication Services) Article 3) of 1 August 1997. Note, however, that logical requirements of form are imposed only in a minority of the current and proposed electronic signature legislation. The majority of that legislation defines the validity of the signature in terms of the functions performed by the signature method.

109. See part 0 above. Where a hard copy document is produced remotely, the signature will take the form of a mark.

110. It is for this reason that the question which is occasionally asked by those unfamiliar with computers, 'Can I place the digital document on a floppy disk and sign the disk's label?', is a nonsense. The digital document can be altered or substituted without any perceptible effect on the disk itself, and thus the carrier has been signed, but not the document itself.

111. The American Standard Code for Information Interchange, which defines each alphanumeric symbol as a number between 0 and 127 (0 and 255 if the extended ASCII character set is used).

112. The term 'document' is used here in a very broad sense. The definition in Civil Evidence Act 1995 s.13 of a document as 'anything in which information of any description is recorded' would mean that, for evidential purposes, a transmission of data would not consist of a document, but rather that the several recordings on magnetic media during the transmission process would all be documents (or perhaps copies of the same document). Many other statutory definitions, however, define 'document' as, inter alia, a 'record kept by means of a computer' (see e.g. s. 40 Finance Act 1993). For the purposes of this article, any discrete set of digital information will be treated as a document provided it performs the essential function of conveying information - see Grant and another v. Southwestern and County Properties Ltd and another [1975] Ch 185.

For a more detailed analysis of the concept of 'document' see Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapter 1.

113. This is true even if the document is contained only in the temporary memory (RAM) of a computer.

114. In the case of magnetic storage media such as disks or tapes, the magnetic polarity of particular areas of the medium is switched by moving electrons into new orbits.

115. Or, in some cases, on a mathematical derivative (for example a checksum or hash function) of the document as a whole. For further discussion see part below.

116. Although the document is altered (logically but not physically) in that it now consists of a different set of bits.

117 . Logically irreversible, that is. See in particular part below.

118. This would focus attention on the technical results of the digital signature process, and more importantly on whether the requisite level of identification of the signatory, authentication and evidence of adoption of its contents had been achieved.

119. [1987] 1 Lloyd's Rep 546.

120. [1987] 1 Lloyd's Rep 546, at p. 554.

121. Though in 5-bit Baudot code rather than 8-bit ASCII.

122. This may not be an insuperable problem because extrinsic evidence could be adduced to prove that the sending machine was under the control of the signatory, in the same way as would need to be done if it were alleged that a rubber stamp facsimile signature had been used with the apparent signatory's authority.

123. On this point in relation to electronic mail see Amory and Poullet, 'Computers in the law of evidence - a comparative approach in civil and common law systems' (1987) 3 Computer Law and Practice 114, 118; Reed, 'Authenticating Electronic Mail Messages - some evidential problems' [1989] MLR 649.

124. SI 1993 No 1202.

125. Which require the documents in question to be signed.

126. SI 1981 No 1687.

127. In writing this section, I have relied heavily on 'Encryption techniques' by Lars Davies, the appendix to Reed & Davies, Digital Cash - the legal implications, a research report published by the Information Technology Law Unit of the Centre for Commercial Law Studies, Queen Mary & Westfield College: London 1995.

128. For encryption and decryption, documents are normally broken up into blocks of digits, each of which is treated as a number. DES encryption (see below) deals in 64-bit blocks, i.e. each 64 bits of the documents is encrypted separately. If the first word of a document in 8-bit ASCII were 'Signing ' (eight letters including the space), the eight 8-bit ASCII codes:

01010011, 01101001, 01100111, 01101110, 01101001, 01101110, 01100111, 00100000

would be aggregated to produce a single 64-bit number, equivalent to decimal 6,010,448,901,615,530,000.

Every mathematical encryption system uses this method of breaking up the message into large numbers on which the encryption function is performed, although the block size may differ. In order to speed up calculation for signature purposes, the encryption may be performed on a number derived from the document, normally its checksum. If the document is altered its checksum will also alter, and this digital signature can thus be used to prove that the current data content of the document is the same as that on which the digital signature function was performed.

129. Computational infeasibility means that although the message can in theory be decoded, the amount of time this would take is so large that for practical purposes the encryption can be regarded as secure. For DES the average time required to break the code using a computer that checks one potential key per microsecond, operating 24 hours a day, is on average over 1,000 years, and for RSA encryption (see below) using a 200 digit key the average time required is longer than the expected lifetime of the universe - see Beckett, Introduction to Cryptology (Blackwell Scientific Publications: Oxford 1988) Ch. 9. Modern computers can process encryption keys much faster than this, so an evidentially effective electronic signature requires the use of a key length which will convince the court, on the balance of probabilities or beyond reasonable doubt as appropriate, that the encryption is unlikely to have been broken. Note that an increase of one digit in the key length doubles the average time required to break the encryption.

130. US National Bureau of Standards FIPS Publication 64 (1977), ANSI X3.92-1981. All the details of the algorithm are public, but because the key is kept secret it is computationally infeasible to discover that key within a realistic time, even with samples of plaintext and its equivalent encrypted text - see Longley and Shain, Data and Computer Security - dictionary of standard concepts and terms (New York 1987) p.94, Beckett, Introduction to Cryptology (Blackwell Scientific Publications: Oxford 1988) Ch. 16.

A more recent single key encryption system which is gaining increased acceptance is IDEA, the International Data Encryption Algorithm, which addresses some of the weaknesses of DES - see Schneier, Applied Cryptography (John Wiley & Sons: London 1994) 11.9.

131. Computational infeasibility is a moving target, and as the processing power available to those who wish to crack an encryption technology increases that technology's level of security decreases. DES, with its 56 bit key, is now comparatively easy to crack - see http://www.eff.org/descracker.html - and a more secure technology, DES2, has largely replaced DES.

132. See the explanations of the Lamport-Diffie and the Rabin signatures in Longley and Shain, Data and Computer Security - dictionary of standard concepts and terms (Macmillan: New York 1987); Man Young Rhee, Cryptography and Secure Communication (McGraw Hill: New York 1994) section 10.

133. Named after its inventors - see Rivest RL, Shamir A and Adleman L, 'A method of obtaining digital signatures and public key cryptosystems' 21 Communications of the ACM 120 (1978).

134. The remainder when n is successively subtracted from the result of the calculation as many times as is possible. The simplest example of modulus arithmetic is the clock: 14 = 2 mod 12, or 14.00 = 2 o'clock.

135. An algorithm of this kind is based on trapdoor one-way functions, so-called because once the data has passed through the 'trapdoor' of the algorithm it is not practically possible (i.e. computationally infeasible) to reverse the algorithm to recover the original data:

'Trapdoor one-way functions, which are one way computable functions, provide the basis for public-key encryption. Easy to calculate in one direction, they are virtually impossible to reverse calculate without knowing the trapdoor or secret. One of the keys provides the forward direction of the function and the corresponding key provides the trapdoor to facilitate the reverse calculation.'

(Davies, 'Encryption techniques', appendix to Reed & Davies, Digital Cash - the legal implications (Centre for Commercial Law Studies: London 1995)).

See further Schneier, Applied Cryptography (John Wiley & Sons: London 1994) 12.4.

136. n is an extremely large number (200 digits or more) that is the product of two primes P1 and P2. To produce kp and ks the first step is to calculate [n] = (P1-1)*(P2-1). kp is then chosen (conforming to certain specified criteria) and ks is calculated from the formula: kp*ks = 1 mod [n]

To discover ks from the public information (n and kp) [n] must be known. To find [n] P1 and P2 must be discovered, but as these are both prime numbers, the only method is 'brute force', i.e. dividing n by every prime less than the square root of n.

As a simple example, if P1=13 and P2=7 then n=91. [n] is found by (13-1)*(7-1) = 72. If we choose kp =5, then ks=29 (5*29 = 145 = 1 mod 72). Encryption is thus plaintext5 mod 91, and decryption is ciphertext29 mod 91. This example is not secure because n can easily be factorised using pencil and paper as there are only five prime numbers less than the square root of 91.

137. The sender begins his document with some form of identification which he leaves unencrypted, and then encrypts the rest of the document using ks. When it is received, the recipient uses the identification to discover the sender's identity and decrypts the document using the sender's public key, kp. As only the sender could have encrypted the document, if both encrypted and plaintext versions are produced in court the judge can check the identity of the sender by decrypting the document and checking it against the plaintext version. This also authenticates the contents of the document, as if the recipient alters the contents he will not be able to re-encrypt the document so that it decrypts with kp.

138. For more information on PGP see Zimmerman, PGP™ User's Guide (MIT Press: Boston 1995); Garfinkel, PGP: Pretty Good Privacy (O'Reilly & Associates: New York 1994).

139. The description of the technology in this section is based on the published details of the PenOp system, but other systems of biometric recording are likely to operate in a similar manner. See Wright, 'Alternatives for Signing Electronic Documents' [1995] 11 CLSR 136.

140. The physical appearance of the signature is the least important element in authentication, as it can be reproduced by scanning or copying, and to reduce the quantity of information stored and processed this part of the data may be discarded.

141. The collection of biometric data raises many additional issues, in particular issues relating to human rights. See Prins, 'Biometric Technology Law' [1998] 14 CLSR 159.

142. L'Estrange v. Graucob [1934] 2 KB 394, 403 per Scrutton LJ.

143. Saunders v. Anglia Building Society [1971] AC 1004.

144. In the case of electronic signatures, the extrinsic evidence required would be:

(a) That the signature key or its equivalent was in the possession of the alleged signatory or his authorised agent;

(b) That the use of that signature key produces the electronic signature affixed to the document in question; and

(c) That the mathematical probability that some alternative key in the possession of a third party could have created the same signature is sufficiently low to convince the court that the signature was in fact affixed by the signatory.

In the case of the public key encryption systems discussed in part above, proof that the signature decrypts with the signatory's public key should be sufficient if that public key can reliably be attributed to the signatory.

145. The best-known Certification Authority is probably Verisign Inc., www.verisign.com.

146. See part 0 above.

147. Of course, to operate effectively this certificate must be processable automatically without human intervention. Thus the certificate is authenticated not in a traditional paper-based way but by the Certification Authority's electronic signature. This signature will be certified by a different Certification Authority, and that certificate will also be signed electronically. The theoretical circularity of this process is obviated in practice because a recipient will have identified some Certification Authority (e.g. his bank) whose electronic signature has been authenticated by some other means, and which is therefore trustworthy. Any other Certification Authority certified by that Certification Authority is also trustworthy, at least as to its identity, and so on. The user gradually builds up a database of authenticated electronic signatures, which reduces the amount of checking required.

The concept of authentication by a train of trusted messages was accepted recently by the courts in Standard Bank London Ltd. v. The Bank of Tokyo Ltd. [1995] 2 Lloyd's Rep 169. In that case the defendant communicated with the plaintiff by trusted telexes (telex messages containing secret codes known only to sender and recipient). Because the parties did not have a trusted telex relationship between themselves, the defendant sent its messages to a correspondent with whom it did have such a relationship, and that correspondent forwarded them to another intermediary who passed them on to the plaintiff. The case was decided on the basis that these messages were properly authenticated as originating from the plaintiff, and the expert evidence (which was accepted by the court) stated that trusted telex messages were treated by banks as if they were signed.

148. See part 0 above.

149. Jenkins v. Gaisford & Thring, In the Goods of Jenkins (1863) 3 Sw. & Tr. 93; London County Council v. Vitamins, Ltd., London County Council v. Agricultural Food Products, Ltd. [1955] 2 QB 218; Tennant v. London County Council (1957) 55 LGR 421; France v. Dutton, [1891] 2 Q.B. 208.

150. Brown v. Westminster Bank Ltd. [1964] 2 Lloyd's Rep. 187.

151. Geary v. Physic (1826) 5 B&C 234.

152. Lucas v. James (1849) 7 Hare 410.

153. Most are influenced by Art. 7(1) of the UNCITRAL Model Law on Electronic Commerce (United Commission on International Trade Law: Vienna 1996), which provides:

'Where the law requires a signature of a person, that requirement is met in relation to a data message if:

(a) a method is used to identify that person and to indicate that person's approval of the information contained in the data message; and

(b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.'

The American Bar Association Digital Signature Guidelines (ABA: Chicago 1996) have been widely referred to in devising these proposals, some of the most important of which include the Utah Digital Signature Act 1996 (Utah Code § 46-3), the German Digital Signature Act (Signaturgesetz) 1997 and Ordinance (Signaturverordnung, made under § 19 Digital Signature Act 1997, in force 1 November 1997), the Singapore Electronic Transactions Act 1998 and the Australian Electronic Transactions Act 1999.

154. Directive 1999/93/EC on a Community framework for electronic signatures, OJ L13 p. 12, 19 January 2000.

155. COM(1998) 297 final.

156. Directive 1999/93/EC on a Community framework for electronic signatures, OJ L13 p. 12, 19 January 2000.

157. The terminology of 'simple' and 'certified' signatures is not found in the Directive, but is adopted here for ease of reference.

158. A 'certification-service-provider', defined in Art. 2(11), i.e. a Certification Authority (see above).

159. Art. 2(10). The certificate must fulfil the requirements of Annex I, and it must be issued by a certification-service-provider who meets the requirements of Annex II.

160 . Under Art. 2(6) such a device must meet the requirements of Annex III.

161. Art. 5(2).

162. Defined in Art. 2(7). This definition would encompass any of the electronic signature methods discussed in this Chapter.

163.Art. 2(9).

164. Art. 2(10).

165. Which states: 'Qualified certificates must contain:

(a) an indication that the certificate is issued as a qualified certificate;

(b) the identification of the certification-service-provider and the State in which it is established;

(c) the name of the signatory or a pseudonym, which shall be identified as such;

(d) provision for a specific attribute of the signatory to be included if relevant, depending on the purpose for which the certificate is intended;

(e) signature-verification data which correspond to signature-creation data under the control of the signatory;

(f) an indication of the beginning and end of the period of validity of the certificate;

(g) the identity code of the certificate;

(h) the advanced electronic signature of the certification-service-provider issuing it;

(i) limitations on the scope of use of the certificate, if applicable; and

(j) limits on the value of transactions for which the certificate can be used, if applicable.'

166. These requirements, with minor differences to reflect the difference nature of the services provided, are very similar to those used to determine whether a banking licence should be granted – see Banking Act 1987 Sch. 3 and Statement of Principles: Banking Act 1987, Banking Co-ordination (Second Council Directive) Regulations 1992 (Bank of England: London 1993), made under s. 16 of the Banking Act.

167. The principles and procedures for recognition are set out in Directive 1999/93/EC on a Community framework for electronic signatures, OJ L13 p. 12, 19 January 2000, Art. 7.

168. Directive, Art. 3.

169. Directive, Art. 4. See also Art. 7 (which makes provision for the acceptance of certificates issued outside the EC where the Certification Authority is licensed within a Member State or whose certificates are guaranteed by an EC Certification Authority).

170. Directive, Arts. 6, 8 and 7 respectively.

171. Department of Trade and Industry, Building Confidence in Electronic Commerce (5 March 1999, URN 99/642).

172. Building Confidence in Electronic Commerce (5 March 1999, URN 99/642) p. 11. For the current version of those conditions see part above.

173. Building Confidence in Electronic Commerce (5 March 1999, URN 99/642) p. 11.

174. Building Confidence in Electronic Commerce (5 March 1999, URN 99/642) pp. 11-12.

175. There were other objections which were not relevant to this article, in particular in respect of the proposals to give powers to law enforcement authorities to require the production of encryption keys, which were also contained in the first (July 1999) draft of the Bill. The Act has dropped these elements, which are now dealt with in the Regulation of Investigatory Powers Bill 2000.

176. Defined in s. 7(2):

'For the purposes of this section an electronic signature is so much of anything in electronic form as-

(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.'

177. Section 7(3) provides:

'For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that-

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

(c) a procedure applied to the signature,

is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both.'

178. For this reason, no details of the requirements for accreditation are yet available. However, Annex A of Department of Trade and Industry, Building Confidence in Electronic Commerce (5 March 1999, URN 99/642) set out detailed licensing criteria which were closely modelled on the conditions for receiving a banking licence – see note . These, read together with Annex II of the Directive which sets out the requirements for the provider of a qualified certificate, are likely to form the basis of such a scheme. Discussions are under way to establish an industry-operated accreditation scheme for Certification Authorities (see www.fei.org.uk/fei/news/newintro.htm for details of the tScheme project).

The nature of these requirements reflects the view that Certification Authorities are likely to become as fundamental a part of the global system for exchanging information as banks are of the global system for exchanging funds; indeed, the analogy is even closer in that the majority of funds transfers, domestic or international, take place solely through the interchange of accounting information via secure networks. Thus the general licensing criteria set out in Building Confidence in Electronic Commerce Annex A, part I relate to the financial stability and operational competence of the Certification Authority, and the technical criteria in part II concentrate largely on ensuring that the operational procedures of the Certification Authority will be adequate to ensure that certificate provide proof of the conditions of validity for an electronic signature.

179 . See part 0 above.

180. [1954] 1 QB 550.

181. EU Directive 2000/31/EC on electronic commerce, OJ L 178 p. 1, 17 July 2000, Art. 9(1):

'Member States shall ensure that their legal system allows contracts to be concluded by electronic means. Member States shall in particular ensure that the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effectiveness and validity on account of their having been made by electronic means.'

182. See Reed, Digital Information Law: electronic documents and requirements of form (Centre for Commercial Law Studies: London 1996) Chapter 2.

JILT logo and link to JILT homepage