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Today we have a guest blog post from Kenan L. Farrell, Attorney-at-Law on the legal aspects of electronic signatures.
Formstack customers often ask about collecting electronic signatures via Formstack’s web forms. Here are some examples of the types of questions customers are asking:
- Does your product offer a way to do verifiable signatures? My client wants to post job applications online which will need this functionality.
- Our company is looking to add an online enrollment form with an electronic signature on our web site. Is this something you can help with?
- We have a contract that we want to get up online but are not sure of the most efficient way to do it. The majority of it is in a word document and we’d like to add payment integration and some contact info input and a digital signature.
- We have a waiver, disclamer, and legal notice that we need to have a digital signature on before they submit payment via PayPal. Can I do this?
Formstack does a wonderful technical job of making these options available to their customers, and I’ll leave it to them to explain how they work their magic. But they’ve asked that I help explain the legality/enforceability of electronic signatures. Ultimately, being legal or enforceable means that a court would accept a electronic signature collected via your form as admissible trial evidence should there ever be a dispute that requires court intervention.
First, I’ll preface this post by saying that Adobe previously ran an excellent series of blog posts on the topic of electronic signatures. These posts are definitely worth a read if you’re interested in more information on electronic signatures:
I’ll address some of those points here as they pertain to web forms. First, what is an electronic signature, and how does it differ from a traditional pen-to-paper signature? Obviously it’s electronic and not ink, but there’s more to it than that…or is there?
In commerce and the law, a signature on a document is an indication that the person adopts the intentions recorded in the document. Accordingly, an electronic signature is any legally recognized electronic means that indicates that a person adopts the contents of an electronic message.
The historical legal concept of “signature” is broader. It recognizes any mark made with the intention of authenticating the marked document. Hence, an “X” can often suffice as a proper signature.
Courts will accept an “electronic signature” as a “signature” so long as it meets the definition set forth by precedent and law (in other words, the definition varies by jurisdiction). An electronic signature and a pen-to-paper signature are equivalent in most respects, and can admissible in trial.
That being said, all signatures (whether electronic or old-school) intended to be entered into evidence in a trial need to be assessed for “admissibility.” Some of the threshold evidentiary questions are: Does it represent the intent of the signatory? Has the document/form been altered? Who had the right to sign this document/form? How was the signature derived, and what controlled access to the document for its signature? These questions come into play no matter the type of signature.
Higher assurance signature methods that better authenticate the signatory, such as encryption or username/password requirements, are more likely to be accepted than signature technologies which provide lesser assurance. While an electronic signature may be a legal signature, it can still be held inadmissible if the judge feels that the signature process did not provide the appropriate level of assurance.
Electronic Signatures and Records Association, an organization which seeks to expand knowledge on both electronic signature and records, plays an active role in public policy on these topics. Check them out for additional information on the legality of electronic signatures.
In the next installment, I’ll discuss the difference between electronic signatures and digital signatures. See you then.
Kenan L. Farrell advises business owners, non-profits, entrepreneurs and artists on business and intellectual property (copyright, trademark, patent) issues. You can read more from him over at the Indiana Intellectual Property & Technology Law Blog. Follow on Twitter @klflegal