Several different ways to indicate person by electronic signature 1.typing the signer's name into the signature area 2.pasting in a scanned version of.

Several different ways to indicate person by electronic

signature

1. typing the signer's name into the signature area

2. pasting in a scanned version of the signer's signature

3. clicking an "I Accept" button4. using cryptographic "scrambling" technology

Two elements of electronic signature

1. Material – all kinds of data which are unique and can be used in electronic signature (fingerprints, voice record, PIN code)

2. Functional – electronic signature characteristic which allows identify the subject

PIN code technology and electronic signature technology

Equivalent or not?

Technical aspect and legal aspect

Digital signatures

• Cryptographic Signatures (PKI – Public Key Infrastructure)

• XML-Based Signatures• Blind signature• Undeniable Signature

Electronic signature legitimation schemes

1. minimum regulation2. clear technological consolidation (PKI)3. legitimation based on technological

neutrality principle

Electronic signature electronic signatureelectronic signature means data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authenticationadvanced electronic signatureadvanced electronic signature means an electronic signature which meets the following requirements:(a) it is uniquely linked to the signatory(b) it is capable of identifying the signatory(c) it is created using means that the signatory can maintain under his sole control(d) it is linked to the data to which it relates in such a manner that any subsequent change of the data is detectable

Electronic signature legal power

Allowable as evidence in trialConditions:

1. Security2. Based on secure signature formative

technology3. Certified on valid qualified certificate

Electronic signature legal power

Allowable as additional evidence in trialElectronic signature can not be considered as

invalid due to the fact that:1. it is in electronic form2. not based upon a qualified certificate3. not based upon a qualified certificate issued

by an accredited certification-service-provider

4. not created by a secure signature-creation device

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Types of certificates

1. Certificate means an electronic attestation, which links signature-verification data to a signatory and confirms or allows to establish the identity of that signatory

Types of certificates

2. Qualified-certificate means a certificate produced by a certification-service-provider who fulfils the requirements laid down by the Government or its authorised institution. This certificate contains the following data:

1. notation to indicate that it is a qualified-certificate;2. identifiers of the certification-service-provider and his country of residence;3. name and surname or the pseudonym of the signatory ;4. specific attributes of the signatory, if that is required considering the projected

goals of the certificate’s use;5. signature-verification data, which corresponds to the signature-creation data

under the control of the signatory;6. periods of the beginning and end of validity of the certificate;7. certificate identifier, supplied by certification-service-provider;8. secure-electronic-signature of the certification-service-provider;9. limitations on the scope of use of the certificate, if applicable;10. limits of the value of transactions fort which the certificate can be used, if

applicable;

Types of documents

WrittenWritten – paper or electronic

OthersOthers – audio, video,

Dual nature of electronic contract

1. may appear on a computer screenon a computer screen to consist of words in a written form

2. in reality this is merely a representation of the information stored by the computer in electronic form, which does not consist of words but strings of numbers and symbolsstrings of numbers and symbols

Modern policies point to certain imperatives of writing

contract 1. the need for certainty within contractual

relationships2. the importance of the parties giving serious

deliberation to a decision to enter a land transaction

3. the need to memorialise the agreement for later reference

4. the importance of authentication of the contract to inhibit the likelihood of fraud

• Writing - "any mode of representing or reproducing words in a visible form"

England, the United States and Australia

• United Kingdom: Interpretation Act 1978 (UK), Schedule 1: "Writing" includes typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly.

• Australia: Acts Interpretation Act 1954 (Qld) s. 36: "writing includes any mode of representing or reproducing words in a visible form"

The types of media which has been accepted as writing in

England and Australia1) A recital in a will2) An affidavit3) Letters4) A reply to a requisition5) A statement in a rent book6) A recital in a settlement7) A receipt8) A cheque9) Telegrams10) Bills of exchange11) Facsimiles

US courts are prepared to hold that an email is a sufficient

writing

Shattuck v. Klotzbach 2001 Mass. Super. LEXIS 642, 14 Mass. L. Rep. 360 (Mass. Super. Ct. 2001) where the parties created an agreement of sale by e-mail.

The policy objective of the writing requirement in the Statute of Frauds (USA)

1. First the objective is to promote certainty and deliberation in transactions.

2. The second objective is to memorialise the agreement in a reliable form which could be referred to later by the parties and if necessary, produced as evidence in court proceedings.

First objective

Acts Interpretation Act 1954 (Qld), s 36; Interpretation Act 1987 (NSW) s. 21: "writing includes printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form"

This definition applies to the visible representation of electronic data as words on a computer screen.

If a party can see it and read it, the document is in a visible form.

Second objective

Central to this view is the assumption that words on a paper document cannot be altered without detection

In order to satisfy this policy objective, the parties should chose a method of creating the electronic contract that is reliable and assures the integrity of the document is maintained.

Digital signature

Australia – Electronic Transactions (Queensland) Act

Requirement the giving of information in writing may be satisfied by the giving of the information by way of an electronic communication

Electronic communication:1. communication using cables and wires2. radio waves3. visible light4. microwaves5. infrared signals and 6. other energy in the electromagnetic spectrum

Electronic document have the same functional equivalence

as a paper document

1) Giving of informationGiving of information: a person "is required to give information in writing"

2) Information must be readilyInformation must be readily accessible so as to be useable for future reference

3) ConsentConsent: consent that can reasonably be inferred from the conduct of the person concerned

Possible situations where consent may be inferred

include• Previous course of dealingsPrevious course of dealings where

electronic communication was used• A person commenced correspondencecommenced correspondence or

makes an offer via electronic communication and the other party responds in kind

• A person hands to another a business card with an email address indicating the card included contact details

Electronic contracts (two positions)

1. First• terms of contract are in electronic form and • the party will is express in electronic form2. Second• the contract is oral or written in the

traditional way• the contract have references to the web-site• terms of contract are discuss in cyberspace• the party will is on traditional way

UNCITRALModel Law on Electronic Commerce with Guide to

Enactment 1996

Legal recognition of data messages

Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.

•Written•Signature•Original

Legal recognition of data messages

WRITTEN

Where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference

Legal recognition of data messages

SIGNATUREWhere the law requires a signature of a person,

that requirement is met in relation to a data message if:

1. a method ismethod is used to identify that person and to indicate that person’s approvalapproval of the information contained in the data message

2. that method is as reliablethat 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

Legal recognition of data messages

ORIGINALWhere the law requires information to be

presented or retained in its original form, that requirement is met by a data message if:

1. there exists a reliable assurance as to the reliable assurance as to the integrity of the informationintegrity of the information from the time when it was first generated in its final form, as a data message or otherwise

2. where it is required that information be presented, that information is capable of capable of being displayedbeing displayed to the person to whom it is to be presented.

Admissibility and evidential weight of data messages

Information in the form of a data message shall be given due evidential weight

In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to deny the admissibility of a data message in evidence:

• on the sole ground that it is a data message• if it is the best evidence that the person

adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form

Information forms and evidences

• e-mail message and attachment• power point presentation• text created by MS Word or other text

redactors• spread sheet• graphic• animation• pictures• audio and video material• voice mail

2004 American Advocate Association

Retention of data messagesWhere the law requires that certain documents, records or

information be retained, that requirement is met by retaining data messages, provided that the following conditions are satisfied

• the information contained therein is accessibleis accessible so as to be usable for subsequent reference

• the data message is retained in the format in which it was generated, sent or receivedgenerated, sent or received, or in a format which can be demonstratedcan be demonstrated to represent accurately the information generated, sent or received

• such information, if any, is retained as enables the identificationidentification of the origin and destination of a data message and the date and time when it was sent or received

Requirement for data message (including electronic

document)

1. authentic2. reliable3. accessible and usable4. authenticate by electronic signature5. usable as evidence6. possible for reproduction7. acceptable form for trial

Electronic contract

Where a data message is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose

Attribution of data messages

1. A data message is that of the originator if it was sent by the originator itselforiginator itself

2. As between the originator and the addressee, a data message is deemed to data message is deemed to be that of the originatorbe that of the originator if it was sent:

• by a person who had the authority to act on behalf of the originator in respect of that data message

• by an information system programmed by, or on behalf of, the originator to operate automatically

Attribution of data messages

3. As between the originator and the addressee, an addressee is entitled to regard a data message addressee is entitled to regard a data message as being that of the originatoras being that of the originator, and to act on that assumption, if:

• in order to ascertain whether the data message was that of the originator, the addressee properly applied a procedure previously agreed to by the originator for that purpose; or

• the data message as received by the addressee resulted from the actions of a person whose relationship with the originator or with any agent of the originator enabled that person to gain access to a method used by the originator to identify data messages as its own.

Acknowledgement of receipt

Sending a data message, or by means of that data message, the originator has requested or has agreed with the addressee that receipt of the data message be acknowledged

Where the originator has not agreed with the originator has not agreed with the addresseeaddressee that the acknowledgement be given in a particular form or by a particular method, an acknowledgement may be acknowledgement may be given bygiven by:

• any communication by the addressee, automated or otherwise

• any conduct of the addressee sufficient to indicate to the originator that the data message has been received

Time and place of dispatch and receipt of data messages

Unless otherwise agreed between the originator and the addressee, the dispatch of a data message occurs when it enters an information enters an information system outside the control of the originatorsystem outside the control of the originator or of the person who sent the data message on behalf of the originator.

Time of dispatch and receipt of data messages

Unless otherwise agreed between the originator and the addressee, the time of receipt of a data message is determined as follows:

1. if the addressee has designatedhas designated an information system for the purpose of receiving data messages, receipt occurs:

• at the time when the data message enters the designated information system

• if the data message is sent to an information system of the addressee that is not the designated information system, at the time when the data message is retrieved by the addressee

2. if the addressee has not designatedhas not designated an information system, receipt occurs when the data message enters an information system of the addressee.

Place of dispatch and receipt of data messages

Unless otherwise agreed between the originator and the addressee, a data message is deemed to be dispatched at the place where the originator has its place of businessoriginator has its place of business, and is deemed to be received at the place where the addressee has its place of business. For the purposes of this paragraph:

1. if the originator or the addressee has more than one has more than one place of businessplace of business, the place of business is that which has the closest relationship to the underlying transactionclosest relationship to the underlying transaction or, where there is no underlying transaction, the principal place of business;

2. if the originator or the addressee does not have a place does not have a place of businessof business, reference is to be made to its habitual habitual residenceresidence