[1] Refer to Reed C "What is a Signature?" 2000 (3) Journal of Information, Law and Technology located at http://elj.warwick.ac.uk/jilt/00-3/reed.html See also the words of Denning LJ in Goodman v Eban [1954] QBD 550 at 56"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 upon it."
[2] Refer to R v Moore Ex Parte Myers (1884) 10 VLR 322.
[3] 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 Curt 752; Baker v. Dening 8 A&E 94 (signature valid even though signatory could write his name), In re Doe d. Phillips v. Evans 2 LJ Ex 19 (signature by seal valid for purposes of Insolvency Act); In Re Byrd Curt 117 (signature by seal invalid for purposes of Wills Act); Schneider v. Norris 2 M&S 286.
[4] [1954] 1 QBD 550 at 557. This case involved a solicitor's bill which had been signed with a facsimile of the firm's name imposed by a rubber stamp.
[5] [1954] 1 QBD 550 at 563.
[6] Re a debtor(No 2021 of 1995) [1996] 2 All ER 345 at 349 per Laddie J.
[7] Goodman v J Eban Ltd [1954] 1 QB 550 at 55 per Lord Evershed MR.
[8] Standard Bank London LTD v The Bank of Tokyo [1995] 2 Lloyd's Report 169.
[9] Cohen v Roche [1927] 1 KB 16 at 176 per McCardie J.
[10] Farrelly v Hircock (No 1) [1971] QdR 341 at 356 per Wanstall J (as he then was).
[11] Williams J, The Statute of Frauds, Section 4 - In the Light of Its Judicial Interpretation, supra at 87-88.
[12] Similar provisions exist in other States of Australia: [insert comparative provisions]
[13] Tiverton Estates Ltd v Wearwell Ltd [1975] 1 Ch 146.
[14] Leeman v Stocks [1951] 1 Ch 941 at 947-948.
[15] For further discussion of the characteristics of a signature refer to McCullagh A, Caelli W, Little P, "Signature Stripping: A Digital Dilemma" 2001 (1) Journal of Information, Law and Technology http://elj.warwick.ac.uk/jilt/01-1/mccullagh.html
[16] [1987] 1 Lloyd's Rep 546.
[17] Ibid at 554.
[18] That is placing a scanned signature or typing a name on a document.
[19] There are several different technologies used to create digital signatures. See A McCullagh, "Legal Aspects of Electronic Contracts and Digital Signatures" in Going Digital 2000: legal issues for e-commerce, software and the internet, Fitzgerald A, Fitzgerald B, Cifuentes C, Cook P (ed), St. Leonards, NSW, Prospect Media, 2000 at 195.
[20] The message summary may be referred to by a variety of names including "hash value", "message digest", "cryptographic check" or even a "seal".
[21] See Faber D, Digital Signature Guidelines, Judicial Studies Board, July 2000.
[22] This issue is discussed below.
[23] Ibid.
[24] McCullagh A, Caelli W, Little P, "Signature Stripping: A Digital Dilemma" 2001 (1) Journal of Information, Law and Technology http://elj.warwick.ac.uk/jilt/01-1/mccullagh.html
[25] McCullagh A, Caelli W, Little P, "Signature Stripping: A Digital Dilemma" 2001 (1) Journal of Information, Law and Technology http://elj.warwick.ac.uk/jilt/01-1/mccullagh.html
[26] The Certification Authority will need to be a trusted third party that has established appropriate security procedures for the identification of parties applying for keys, maintaining the currency of the certificates given and maintaining security in the creation of private and public keys. In Australia, the government has rejected the establishment of government regulated Certification Authorities. The government has proposed the establishment of the National Electronic Authentication Council (NEAC) to develop appropriate policies that the certification industry in Australia will be required to meet.
[27] See L'Estrange v Graucob [1934] 2 KB 394, Saunders v Anglia Building Society [1971] AC 1004.
[28] This view is consistent with the Electronic Transactions legislation, which provides for an electronic communication sent by a party to be attributed to that party only if it was sent with that party's authority. Refer to s 26 Electronic Transactions (Queensland) Act 2001 (Qld).
[29] McCullagh A, Caelli W, Little P, "Signature Stripping: A Digital Dilemma" 2001 (1) Journal of Information, Law and Technology http://elj.warwick.ac.uk/jilt/01-1/mccullagh.html
[30] McCullagh A, Caelli W, Little P, "Signature Stripping: A Digital Dilemma" 2001 (1) Journal of Information, Law and Technology http://elj.warwick.ac.uk/jilt/01-1/mccullagh.html
[31] The text of the Model Law on Electronic Signatures can be found on the UNCITRAL website at http://www.uncitral.org/english/texts/electcom/ml-elecsig-e.pdf
[32] Information on the status of texts can be found on the UNCITRAL website http://www.uncitral.org/en-index.htm
[33] The term "electronic signature" is defined in Article 2 as "data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory's approval of the information contained in the data message".
[34] The Electronic Signatures Directive, discussed below, has a similar requirement, the difference being that the UNCITRAL Model Law on Electronic Signatures requires the signature creation data to be linked to the signatory, whereas the Directive requires the electronic signature to be linked to the signatory.
[35] The term signatory is defined as a person that holds signature creation data and acts either on its own behalf or on behalf of the person it represents: Article 2(d) Model Law on Electronic Signatures.
[36] An example of such a situation would be where several employees share the use of a corporate signature creation data. In such a situation, the signature creation data must be capable of identifying one user unambiguously in the context of each electronic signature.
[37] In the context of electronic signatures which are not digital signatures, the term "signature creation data" is intended to designate those secret keys, codes or other elements which, in the process of creating an electronic signature, are used to provide a secure link between the resulting electronic signature and the person of the signatory. An example is provided: in the context of electronic signatures based on biometric devices, the essential element would be the biometric indicator, such as a fingerprint or retina-scan data. In the context of digital signatures relying on asymmetric cryptography, the core operative element that could be described as "linked to the signatory" is the cryptographic key pair (the private and public keys). However, only the private key is covered by this description of "signature creation data". The text being electronically signed is also not covered by this description: UNCITRAL Guide to Enactment to the Model Law on Electronic Signatures 2001, para. 97.
[38] This is similar to the Electronic Signatures Directive. However, the UNCITRAL Model Law on Electronic Signatures requires the signature creation data to be under the signatory's sole control, whereas the Electronic Signatures Directive refers to the method used to create the electronic signature to which the signatory must maintain under his or her sole control.
[39] UNCITRAL Guide to Enactment on the Model Law on Electronic Signatures 2001, para. 126.
[40] The Electronic Signatures Directive requires that the electronic signature (to qualify as an advanced electronic signature) be capable of identifying the signatory. This requirement is not set out in the UNCITRAL Model Law on Electronic Signatures but is contained within the Model Law's definition of an electronic signature.
[41] Article 6(4): "Paragraph 3 does not limit the ability of any person: (a) To establish in any other way, for the purpose of satisfying the requirement referred to in paragraph 1, the reliability of an electronic signature"
[42] UNCITRAL Guide to Enactment on the Model Law on Electronic Signatures 2001, para. 128.
[43] Similar provisions apply in other Australian jurisdictions: Imperial Acts (Substituted Provisions) Act 1986 (ACT), Sch 2 Pt 11 cl 4; Conveyancing Act 1919 (NSW), s 54A; Law of Property Act 2000 (NT), s 62; Law of Property Act 1936 (SA), s 26(1); Conveyancing Law of Property Act 1884 (Tas), s 9; Instruments Act 1958 (Vic), s 136; Statute of Frauds 1677 (Imp) (WA), s 4.
[44] Note that the signature provision of the UNCITRAL Model Law on Electronic Commerce (Article 7) specifically provides that its signature provision applies whether the requirement (where the law requires the signature of a person) is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.
[45] See Sneddon M, "Legislation to facilitate electronic signatures and records: Exceptions, standards and the impact of the Statute Book" (1998) University of New South Wales Law Journal 334, 360.
[46] See section 10(1)(a) Electronic Transactions Act 1999 (Cth)
[47] Explanatory memorandum to the Commonwealth Electronic Transactions Act at p.31, it also recognises that some signature technologies such as digital signatures will also verify the integrity of the electronic communication, simply by the nature of the way they operate.
[48] Explanatory memorandum to the Commonwealth Electronic Transactions Act at p.32.
[49] See Explanatory Memorandum to the Commonwealth Electronic Transactions Act at p.31.
[50] See Explanatory Memorandum to the Commonwealth Electronic Transactions Act at p.31. An example is provided: a signature method may be applied to a communication but then transmitted as a packet of information separate to the communication. If the signature can be shown to indicate the person's approval of the information contained in the communication then the signature will satisfy the requirements in paragraph (a).
[51] A good example would be the UNCITRAL Model Law on Electronic Signatures or the Electronic Signatures Directive, both in this article.
[52] See http://www.bmck.com/uetacomp.htm for a list of states which have enacted the Uniform Electronic Transactions Act.
[53] Uniform Electronic Transactions Act 1999 (US) section 2(8): "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
[54] The Uniform Electronic Transactions Act does not say how this intention can be shown. The commentary to the Uniform Electronic Transactions Act simply states that the critical element is the intent to sign: "One may use a digital signature with the requisite intention, or one may use the private key solely as an access device with no intention to sign, or otherwise accomplish a legally binding act. In any case the critical element is the intention to execute or adopt the sound or symbol or process for the purpose of signing the related record": Uniform Electronic Transactions Act 1999 (US) comments to section 2, comment 7. The Uniform Electronic Transactions Act does describe attribution procedures which are used to verify that an electronic signature, message, or record is that of the person purporting to provide it: see s 9(a) of the Uniform Electronic Transactions Act.
[55] Manual signatures appear on the writing itself so are associated with the writing.
[56] See Uniform Electronic Transactions Act 1999 (US) comments to section 2, comment 7: "This definition includes as an electronic signature the standard webpage click through process. For example, when a person orders goods or services through a vendor's website, the person will be required to provide information as part of a process which will result in receipt of the goods or services. When the customer ultimately gets to the last step and clicks "I agree," the person has adopted the process and has done so with the intent to associate the person with the record of that process".
[57] Fry P, "Introduction to the Uniform Electronic Transactions Act: Principles, Policies and Provisions" (2001) 37 Idaho Law Review 237, 257; also see commentary: for example, when a person orders goods or services through a vendor's website, the person will be required to provide information as part of a process which will result in receipt of the goods or services. When the customer ultimately gets to the last step and clicks "I agree," the person has adopted the process and has done so with the intent to associate the person with the record of that process: Uniform Electronic Transactions Act 1999 (US) comments to section 2, comment 7.
[58] Uniform Electronic Transactions Act 1999 (US) comments to section 2, comment 7.
[59] Directive of the European Parliament and of the Council on a Community Framework for Electronic Signatures, European Parliament Document (1999/93/EC) (1999), OJ 2000 L13/12, [hereinafter Electronic Signatures Directive]. Date for compliance: 19 July 2001. In the United Kingdom, the Electronic Signatures Directive has been implemented by the Electronic Signatures Regulations 2002 and section 7 of the Electronic Communications Act 2000. The provisions of the Directive which are implemented by the Electronic Signatures Regulations relate to the supervision of certification-service-providers, their liability in certain circumstances and data protection requirements concerning them. Provisions in the Directive relating to the admissibility of electronic signatures as evidence in legal proceedings were implemented by section 7 of the Electronic Communications Act 2000.
[60] Spyrelli, C, "Electronic Signatures: A Transatlantic Bridge? An EU and US Legal Approach Towards Electronic Authentication" Journal of Information, Law and Technology 2002(2) http://elj.warwick.ac.uk/jilt/02-2/spyrelli.html .
[61] Electronic signature is defined in Article 2 as "data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication".
[62] Electronic Signatures Directive, article 5.
[63] Electronic Signatures Directive, article 2(2).
[64] A qualified certificate' means a certificate which meets the requirements laid down in Annex I and is provided by a certification-service-provider who fulfils the requirements laid down in Annex II: see Article 2(10). A "certificate" is an "electronic attestation which links signature-verification data to a person and confirms the identity of that person": see Article 2(9).
[65] Electronic Signatures Directive, article 5(1).
[66] S 22 provides: (1) Subject to subsection (2), a legal requirement for a signature other than a witness' signature is met by means of an electronic signature if the electronic signature a. adequately identifies the signatory and adequately indicates the signatory's approval of the information to which the signature relates; and b. is as reliable as is appropriate given the purpose for which, and the circumstance sin which, the signature is required. (2) A legal requirement for a signature that relates to information legally requirement to be given to a person is met by means of an electronic signature only if that person consents to receiving the electronic signature.
[67] Section 24 provides: (1) For the purposes of sections 22 and 23, it is presumed that an electronic signature is as reliable as is appropriate if---
(a) the means of creating the electronic signature is linked to the signatory and to no other person; and (b) the means of creating the electronic signature was under the control of the signatory and of no other person; and (c) any alteration to the electronic signature made after the time of signing is detectable; and (d) where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.
(2) Subsection (1) does not prevent any person from proving on other grounds or by other means that an electronic signature--- (a) is as reliable as is appropriate; or (b) is not as reliable as is appropriate
[68] See s 24(2).
[69] Hartley J, Électronic Signature and Electronic Records in Cyber-Contracting" (2003) 49 The Practical Lawyer 1 at 5.
[70] For example, Berenstein G and Campbell C, "Electronic Contracting: The Current State of the Law and Best Practices" (2002) 14 Intellectual Property & Technology Law Journal 1 at 4.
[71] Huey N, "E-mail and Iowa's Statute of Frauds: Do E-sign and UETA Really Matter? (2003) 88 Iowa Law Review 681 at 690; Broderick M, Gibson V and Tarasevich P, "Electronic Signatures: There Legal Now What?" (2001) 11 Internet Research: Electronic Networking Applications and Policy 423 - 434.
[72] Bell J, Gomez R, Hodge P and Mayer-Schonberger V, "Electronic Signature Regulation - An Early Score Card - Comparing Electronic Signatures Legislation in the US and the European Union" (2001) 17 Computer Law & Security Report 399.
[73] Ibid at 402.