The more an electronic document can be authenticated, the more likely it is that a judge will accept that document as evidence in court. However, document authentication can be a slippery slope, and some authentication measures can be so expensive that they compromise the accessibility and convenience that have made electronic signatures so popular. So the key is to find ways to authenticate documents that are verifiable, admissible, and defensible without overwhelming the parties involved. Best practices for e-signature authentication include a multivariate approach that includes biometric authentication, audit protocols, and signing certificates. A federal law, the Electronic Signatures in Global and National Commerce Act (ESIGN), and the law of almost all states (through the adoption of the Uniform Electronic Transactions Act or similar laws) provide that electronic signatures are legally enforceable as long as certain basic requirements are met. These laws require that electronically signed contracts be performed and treated in the same way as any document signed by traditional means. In other words, no contract can be declared null and void or unenforceable simply because it has been signed electronically. In the last section, we provided the following examples of a simple electronic signature: Photo authentication is one of the most advanced tools for validating the identity of signers. When a webcam or mobile phone camera captures a signer`s face during the e-signature event, any doubts about that person`s identity and ability to sign are removed. After all, the enforceability of a contract depends not only on its validity and admissibility, but also on the content of the contract itself. In a dispute, a judge may consider whether: the terms of a particular agreement were clear and consistent, whether there was consideration (an exchange of value between the parties), whether the parties had legal capacity (capacity) to sign, whether a party was under duress or undue influence, and whether a party was signed accidentally or without knowledge of the meaning of the agreement. Most companies have a lawyer`s project or review their agreements before execution taking these criteria into account in order to maximize applicability in the future if the content of the document is reviewed by a court.

Between the pursuit of remote work and solutions from anywhere, anytime, companies have embraced electronic signatures and document scanning for a variety of reasons: Today, electronic signatures are used by everyone from Fortune 500 companies and government agencies to freelancers and consultants. In fact, Tyler Newby, a partner at Fenwick & West LLP, in his article “Using E-Signatures in Court—The Value of an Audit Trail,” does fantastic work on the value of audit trails in authenticating electronic signatures in court. 3. In EU countries, physical signatures continue to replace electronic signatures. Scanning your wet signature actually reduces the legal credibility of the signature. This type of authentication aims to ensure that the electronic signature of a contract is authentic. This is often done by sending the document to a device or account that the intended signer is known to control, while a secondary access code is required to access the document itself. However, the court did not consider that these cases in themselves proved that Moonwalkers` authorized representative had signed the contract and bound Moonwalkers.

Instead, the court concluded that DocuSign`s records confirmed that Moonwalkers had reviewed and knew the terms of the contract. This, combined with other actions by Moonwalkers to comply with the terms of the contract and respond to requests for information or documents required by BAMS under the contract, led the court to believe that Moonwalker had ratified the contract. The docuSign files were essential evidence, but not in themselves decisive, of the validity or binding nature of the contract. In the United States, judges have repeatedly ruled in favor of electronic signatures. In large part, thanks to the Electronic Signatures Act, which states that transactions should not be “deprived of legal effect” solely because of their electronic form, entrepreneurs and consumers can have full confidence that their electronic signatures are legally valid. As long as an electronic signature is appropriately obtained using compliant technologies, certifications and authentications, it is fully valid under the law. But will the document be admissible in court and will a judge apply the terms of the contract? Traders and consumers should be aware that legal validity, legal admissibility and applicability are not the same thing. Each concept has its own definition, a set of requirements and, above all, a contribution to the outcome of a legal dispute. “An advanced electronic signature created by a qualified electronic signature creation device based on a qualified certificate for electronic signatures.” You`ve probably shopped through a company that had a block of electronic PIN that asked you to sign on the screen instead of printed receipt paper. If you`re a business owner, you`ve probably wondered, “Are electronic signatures as legally binding as traditional paper signatures?” If you`re considering switching to a paperless credit card terminal, the answer to this question could be crucial for your business, as a signed receipt is required in the event of a chargeback. These measures ensure that consumers have the right to sign with pen and paper or in an “other non-electronic form” and how consumers can withdraw their consent to the use of electronic formats. Copyright © 2019, American Bar Association.

All rights reserved. This information or portions thereof may not be copied, distributed, downloaded, or stored in any electronic database or retrieval system in any form or by any means without the express written consent of the American Bar Association. The views expressed in this article are those of the authors and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this Committee, or the author`s employer. .