By Ghaidaa Qaraqish, Associate
We are all familiar with the term “Electronic Signature” and due to the current global circumstance, businesses are using them now more than ever.
Through this article we will provide insight to the electronic signature, including its importance and how to obtain one.
What is an electronic signature?
An electronic signature can come in many forms, for example:
• a signature which is simply typed in to a document, including an email;
• a scanned image of a person's actual signature which is pasted into a document;
• a signature which is drawn on a web or app based system using a stylus or finger on a mobile phone, touch screen computer or a tablet;
• a tick-box or a clickable button on a webpage or in an email;
• a secure signature applied to a document using software which encrypts the signed document which is then authenticated by a third party certifier acting as a 'witness'; or
• a secure (commonly referred to as "digital") signature which is authenticated using a private (unique to the each signatory) encrypted signature key embedded in the document itself.
The UAE Federal Law
The principal piece of legislation which governs the use of electronic signatures in the UAE is Federal Law No 1/2006, also known as the Federal E-Commerce Law (E-Commerce Law).
The E-Commerce Law states that, subject to certain exceptions which will be reviewed below, if the law requires any statement, document, record, transaction or evidence to be written, then an electronic document or record shall satisfy any such requirement subject to certain requirements prescribed by the E-Commerce Law (Article 6).
Article 18 of the E-Commerce Law states that a person is entitled to rely on an electronic signature, provided such reliance is reasonable. In order to determine whether reliance is reasonable in any given context, the following circumstances need to be considered:
• The nature of the underlying transaction that the electronic signature was intended to support;
• The value or importance of the underlying transaction, if this is known to the party relying on the electronic signature;
• Whether the party relying on the electronic signature had taken appropriate steps to determine the reliability of the electronic signature;
• Whether the party relying on the electronic signature took appropriate steps to ascertain whether the electronic signature was supported or was reasonably expected to have been supported by an electronic attestation certificate;
• Whether the party relying on the electronic signature knew or ought to have known that the electronic signature has been compromised or revoked;
• Any agreement or course of dealing between the party that provided the electronic signature, or any trade usage or practice which may be applicable; and
• Any other relevant factor.
The documents which may not be signed electronically are as follows:
• Transactions and issues relating to personal law such as marriage, divorce and wills;
• Deeds of title to immoveable property;
• Negotiable instruments;
• Transactions involving the sale, purchase, lease (for a term of more than 10 years) and other disposition of immoveable property and the registration of other rights relating to immoveable property;
• Any document legally required to be attested before a notary public; and
• Any other documents or transactions exempted by provision of law.
• Deeds of title to immoveable property;
• Negotiable instruments;
• Transactions involving the sale, purchase, lease (for a term of more than 10 years) and other disposition of immoveable property and the registration of other rights relating to immoveable property;
• Any document legally required to be attested before a notary public; and
• Any other documents or transactions exempted by provision of law.
Article 11 of the E-Commerce Law states that an offer or the acceptance of an offer may be expressed, in whole or in part, by electronic communication, and that a contract is not invalid or unenforceable solely by reason that electronic communication was used in its formation.
The E-Commerce Law makes provisions for electronic signatures created using a “signature tool” which is defined by the Federal Law as a “system or electronic information designed independently or in participation with other electronic systems and information to set down an electronic signature...”. It also recognizes the concept of a “secure signature” or a “protected signature” (Article 17) which is an electronic signature for which:
• The electronic signature is attributable to the person that provided it;
• It is possible to verify the identity of the person providing the signature;
• The person providing the signature had control of the tool through which the signature was provided; and
• The electronic signature is linked through secure electronic means to an electronic message.
In order to increase the reliability of another party's electronic signature, it is prudent to ensure that the other party's signature is witnessed by two witnesses who also sign and provide their contact information, under the testamonium “The above signatory is known to me and I confirm that the above signature is genuine.”
The E-Commerce Law regulates “protected signatures” and service providers that provide secure e-signature verification services. The use of such services and service providers gives a greater level of security, but is not essential for an electronic document or e-signature to be valid in law. If you are interested in pursuing the secure signature route, there are currently two validly licensed providers of such services in the UAE (Dark Matter and Adobe).
The UAE Civil Procedure Law (as amended) recognises the authenticity of e-signatures, and specifically provides that an e-signature has the same validity as physical signatures. Although there is no system of binding precedent in the UAE, a number of judgments rendered by the Dubai Court of Cassation have recognised the validity of electronic signatures.
How to obtain an Electronic Signature?
An application to obtain an e-signature card shall be submitted at service centers (TASHEEL) or the establishments participating in the e-forms program. This application shall be sent electronically to the Ministry in order to issue the card and send it to the customer by mail.
Conclusion
To ensure that an e-signature is valid, it is mandatory to make sure that:
- The e-signature is supported by a correct and valid digital certificate.
- The e-signature, or digital certificate, has not been cancelled or its use breached.
- It is important – legally permissible- for an e-signature to be used for that transaction.