Are electronic signatures Legal?

Each province has enacted functionally equivalent electronic commerce legislation.  BC’s is called the Electronic Transactions Act (ETA).  The ETA states that if there is a requirement under law for the signature of a person, that requirement is satisfied by an electronic signature.  There are however exceptions, as electronic signatures are not accepted for wills, trusts created by wills, powers of attorney, and documents that create or transfer interests in land and that require registration to be effective against third parties.   Besides those documents just mentioned, electronic signatures can seemingly be used for all other types of documents that require signatures.

The ETA provides that consent is required for electronic commerce to be effective.  “Nothing in the ETA requires a person to provide, receive or retain information or a record in electronic form without the person’s consent”.

The definition of electronic signature under the ETA, is quite vague, “[I]nformation in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record”.

An electronic signature to meet the rigors of the ETA therefore could be a digitized image of a handwritten signature, a biometric signature such as an electronically recorded thumbprint, a digital signature using a public key infrastructure and a certification authority, or a voiceprint of a person saying his or her name.

The imprecise requirement under the ETA is unlikely to encourage clients nor law firms of the surety of that signature.  A system that guarantees the electronic signature and ensures that the document has not been amended is required.  This is where digital signatures come in.

A digital signature gives the recipient reason to believe that the message was created by a known sender in a way that they cannot deny sending it (authentication) and that the message was not altered in transit (integrity).