Fiddling with the ECT act – Electronic signatures

Abstract

Amongst the changes the Department of Trade and Industry is considering is an amendment of the definition of "electronic signature". Although the amendment seems to be in line with the provisions of the UNCITRAL Model Laws on eCommerce and the 2005 UN Convention on the Use of Electronic Communications in International Contracts, the amendment sets additional and more onerous requirements for all electronic signatures. The note illustrates how this amendment undermines the key principles of functional equivalence, media neutrality and party autonomy, and how this innocuous looking amendment may have very harmful practical consequences. It is suggested that amendments to section 13 would be more appropriate to achieve the objectives of the legislature.