Several different ways to indicate person by electronic signature

1
Several different ways to indicate person by
electronic signature

• typing the signer's name into the signature area
• pasting in a scanned version of the signer's
  signature
• clicking an "I Accept" button
• using cryptographic "scrambling" technology

2
Two elements of electronic signature

• Material all kinds of data which are unique and
  can be used in electronic signature
  (fingerprints, voice record, PIN code)
• Functional electronic signature characteristic
  which allows identify the subject

3

• PIN code technology and electronic signature
  technology
• Equivalent or not?
• Technical aspect and legal aspect

4
Digital signatures

• Cryptographic Signatures (PKI Public Key
  Infrastructure)
• XML-Based Signatures
• Blind signature
• Undeniable Signature

5
Electronic signature legitimation schemes

• minimum regulation
• clear technological consolidation (PKI)
• legitimation based on technological neutrality
  principle

6
Electronic signature

• electronic signature means data in electronic
  form which are attached to or logically
  associated with other electronic data and which
  serve as a method of authentication
• advanced 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

7
Electronic signature legal power

• Allowable as evidence in trial
• Conditions
• Security
• Based on secure signature formative technology
• Certified on valid qualified certificate

8
Electronic signature legal power

• Allowable as additional evidence in trial
• Electronic signature can not be considered as
  invalid due to the fact that
• it is in electronic form
• not based upon a qualified certificate
• not based upon a qualified certificate issued by
  an accredited certification-service-provider
• not created by a secure signature-creation device
• ????

9
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

10
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
• notation to indicate that it is a
  qualified-certificate
• identifiers of the certification-service-provider
  and his country of residence
• name and surname or the pseudonym of the
  signatory
• specific attributes of the signatory, if that is
  required considering the projected goals of the
  certificates use
• signature-verification data, which corresponds to
  the signature-creation data under the control of
  the signatory
• periods of the beginning and end of validity of
  the certificate
• certificate identifier, supplied by
  certification-service-provider
• secure-electronic-signature of the
  certification-service-provider
• limitations on the scope of use of the
  certificate, if applicable
• limits of the value of transactions fort which
  the certificate can be used, if applicable

11
Types of documents

• Written paper or electronic
• Others audio, video,

12
Dual nature of electronic contract

• may appear on a computer screen to consist of
  words in a written form
• 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 symbols

13
Modern policies point to certain imperatives of
writing contract

• the need for certainty within contractual
  relationships
• the importance of the parties giving serious
  deliberation to a decision to enter a land
  transaction
• the need to memorialise the agreement for later
  reference
• the importance of authentication of the contract
  to inhibit the likelihood of fraud

14

• 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"

15
The types of media which has been accepted as
writing in England and Australia

• 1) A recital in a will
• 2) An affidavit
• 3) Letters
• 4) A reply to a requisition
• 5) A statement in a rent book
• 6) A recital in a settlement
• 7) A receipt
• 8) A cheque
• 9) Telegrams
• 10) Bills of exchange
• 11) Facsimiles

16
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.

17
The policy objective of the writing requirement
in the Statute of Frauds (USA)

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

18
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.

19
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

20
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
• communication using cables and wires
• radio waves
• visible light
• microwaves
• infrared signals and
• other energy in the electromagnetic spectrum

21
Electronic document have the same functional
equivalence as a paper document

• 1) Giving of information a person "is required
  to give information in writing"
• 2) Information must be readily accessible so as
  to be useable for future reference
• 3) Consent consent that can reasonably be
  inferred from the conduct of the person concerned

22
Possible situations where consent may be inferred
include

• Previous course of dealings where electronic
  communication was used
• A person commenced 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

23
Electronic contracts (two positions)

• First
• terms of contract are in electronic form and
• the party will is express in electronic form
• 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

24
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

25
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

26
Legal recognition of data messages

• SIGNATURE
• Where the law requires a signature of a person,
  that requirement is met in relation to a data
  message if
• a method is used to identify that person and to
  indicate that persons approval of the
  information contained in the data message
• that 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

27
Legal recognition of data messages

• ORIGINAL
• Where the law requires information to be
  presented or retained in its original form, that
  requirement is met by a data message if
• there exists a reliable assurance as to the
  integrity of the information from the time when
  it was first generated in its final form, as a
  data message or otherwise
• where it is required that information be
  presented, that information is capable of being
  displayed to the person to whom it is to be
  presented.

28
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

29
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

30
Retention of data messages

• Where 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 accessible
  so as to be usable for subsequent reference
• the data message is retained in the format in
  which it was generated, sent or received, or in a
  format which can be demonstrated to represent
  accurately the information generated, sent or
  received
• such information, if any, is retained as enables
  the identification of the origin and destination
  of a data message and the date and time when it
  was sent or received

31
Requirement for data message (including
electronic document)

• authentic
• reliable
• accessible and usable
• authenticate by electronic signature
• usable as evidence
• possible for reproduction
• acceptable form for trial

32
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

33
Attribution of data messages

• A data message is that of the originator if it
  was sent by the originator itself
• As between the originator and the addressee, a
  data message is deemed to be 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

34
Attribution of data messages

• As between the originator and the addressee, an
  addressee is entitled to regard a data message as
  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.

35
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
  addressee that the acknowledgement be given in a
  particular form or by a particular method, an
  acknowledgement may be given 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

36
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 system
  outside the control of the originator or of the
  person who sent the data message on behalf of the
  originator.

37
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
• if the addressee has 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
• if the addressee has not designated an
  information system, receipt occurs when the data
  message enters an information system of the
  addressee.

38
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 business, and is deemed to be
  received at the place where the addressee has its
  place of business. For the purposes of this
  paragraph
• if the originator or the addressee has more than
  one place of business, the place of business is
  that which has the closest relationship to the
  underlying transaction or, where there is no
  underlying transaction, the principal place of
  business
• if the originator or the addressee does not have
  a place of business, reference is to be made to
  its habitual residence