Exploring the use and validity of e-signatures
With such a rule in place, e-signatures can now be said to legally valid and admissible.
Published in Daily Tribune on July 9, 2021
by: Vanessa Arrha A De Leon
Limited physical interaction necessitated by the pandemic led to electronic means to perfect commercial dealings and, with this, an increase in the use of electronic signatures.
The Electronic Commerce Act (Republic Act 8792) and the Rules on Electronic Evidence (REE) provide for the recognition and validity of electronic signatures (e-signatures).
An e-signature is any distinctive mark and/or sound in electronic form, representing the identity of a person and attached to an electronic document. On the other hand, digital signatures are a kind of e-signatures that are generally more secure as they are encrypted and certified as authentic by an authority.
As a rule, e-signatures have the same effect as physical signatures and may be used in contracts, provided that: 1.) The party sought to be bound has indeed provided the e-signature.; 2.) There is a reliable and appropriate method employed not only to identify the party sought to be bound but also to establish that such party was able to access the electronic document on which the e-signature is attached; and 3.) The other party to the transaction is authorized and enabled to identify the e-signature and to make the decision on the transaction authenticated by the e-signature.
In any transaction involving an e-signature, there exists a legal presumption that the relevant e-signature is indeed the signature of the person to whom it correlates and the electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically signed electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances. With such a rule in place, e-signatures can now be said as legally valid and admissible.
There are still instances, however, when a physical signature is required. One instance is when a specific form is required for documents to be considered valid. Under the Civil Code, when contracts have for their object the creation, transmission, modification or extinguishment of real rights over immovable property such as in a contract of sale or donation, the contract is required to be notarized.
The use of e-signatures in such documents would not impress them with validity for being incapable of being notarized. Although there was an attempt by the Supreme Court to “adopt such other authentication procedures, including the use of electronic notarization systems,” no rules have yet been issued.
Perhaps a better appreciation of developing technology can aid the Supreme Court in crafting new rules that will allow for notarization of electronically signed documents. New applications like Docusign and Adobe Sign facilitate secure electronic and digital signing of documents.
Both these applications follow a Public Key Infrastructure (PKI) protocol to certify that the final signed PDF documents and audit trails with a digital signature before distributing to recipients.
They work by generating two “keys” using a mathematical algorithm. One is a private key which is a sequence of numbers to be kept by the signer and used to create the digital signature.
The other, which is the public key, is another sequence of numbers which is sent to the recipient of the document that should allow him to verify the digital signature.
Notably, the digital signatures produced by these applications meet the conditions of the law to regard an e-signature as an authentic equivalent of a physical signature.
Under DocuSign’s protocol, the recipient of the document will use the signer’s public key to try to access the encrypted document.
If the public key is unable to decrypt the signer’s signature, it means the signature has been invalidated because the document has been changed or the signature is not that of the person it purports to be.
Notably, the digital signatures produced by these applications meet the conditions of the law to regard an e-signature as an authentic equivalent of a physical signature.
Likewise, Adobe Sign uses PKI to certify the authenticity of the final signed documents.
This certification is seen in the form of a blue certification banner on the top of the document. This verifies that the document has not been tampered with since the certification was applied.
While it is relatively an unfamiliar concept to many Filipinos, the use of electronic signatures is growing in commonality and will certainly be a useful tool in the nation’s economic recovery. There is even a movement for its mandatory use in government offices which is bound to reduce the usual inconveniences involved in government transactions.
