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An electronic signature, or E-signature, is data that is logically associated with other data and which is used by the signatory to sign the associated data. This type of signature has the same legal standing as a handwritten signature.
Electronic signatures are a legal concept distinct from digital signatures, a cryptographic mechanism often used to implement electronic signatures. On the other hand, digital signature is a unique characteristic in digital form, something like a fingerprint embedded in a document. The signer must have a digital certificate to be associated with the document. A digital certificate helps to verify the document’s authenticity to determine if it has been tampered with. It plays a primary role in identity verification. While an electronic signature can be as simple as a name entered in an electronic document, digital signatures are increasingly used in e-commerce and in regulatory filings to implement electronic signatures in a cryptographically protected way.
Another significant feature of a digital signature is that it is used for protecting digital documents. Fraudsters can forge documents to submit online using an electronic signature, but with a digital signature, it is nearly impossible. The electronic document is protected; only an authorized person can view it to make changes or edits. When a digital signature is applied to a specific document, the digital certificate is bound to the signed data in a single, unique fingerprint. These two components of a digital signature are unique, and it makes them more practical than wet signatures because it is possible to authenticate their origin.
Under US law, an electronic signature is any electronic symbol, process, or sound associated with a record or contract that the interested party intends to sign. Thus, the main feature of an electronic signature is the intention to sign a document or agreement.
The U.S. Code defines an electronic signature for the purpose of US law as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record. It may be an electronic transmission of the document which contains the signature, as in the case of facsimile transmissions, or it may be encoded message, such as telegraphy using code. In the United States, the definition of what qualifies as an electronic signature is wide and is set out in the Uniform Electronic Transactions Act (“UETA”) released by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999.
The main characteristic of an electronic signature is that it reveals the signer’s intent to sign the document. It usually complies with contracts or other agreements that are entered into by two parties. As mentioned earlier, there are different types of electronic signatures. They are legally binding once all parties have demonstrated their commitment and intention to enter into a contract.
When the pandemic Covid-19 hit in 2019, it restricted all sorts of physical movements and thus the importance of digital signature and electronic signature was realized. Then, the question arose whether they are enforceable in various jurisdictions. Electronic signature is an alternative method to wet signatures, which allows the person in concern not to be present physically to sign a document or a contract. Contracts are being entered into, now and then, frequently but the modality of transaction has changed during these 3 years of the pandemic, causing everything to be become digitalized, even in Bangladesh.
The concept of digital signature and electronic signature was first introduced by the Information and Communication Technology Act 2010 (henceforth ICT ACT 2010) and thus the need of those signatures came into limelight in Bangladesh. However, the concept is not totally new, as mentioned above, it came into being and was referred in the year 2010, under the ICT Act 2010, which is almost 10 years ago. This adaptation is essential due to the growing need of digital platforms especially during trade in order to ensure usage of secure platforms, while entering into arrangements. Therefore, this significantly represents that a system which facilitates contracts to be entered into across jurisdictions, without having the person to travel physically. The ICT 2010 Act came with a solution via introducing the concept of digital signature or E-signature, which are often used interchangeably based on the context of English and Bengali. However, both the concepts are different. A digital signature is used to protect the document, whereas E-sign is used mainly to verify the document. A digital signature is usually authorized by certification authorities, whereas E-sign is not usually regulated. A digital signature is usually preferred as opposed to E-sign due to its higher level of authenticity. On the other hand, E-signs are easy to use but the degree of evidential value is lower. In case of digital signature, the signer is concerned about the security of the document and in case, of E-sign, he/she is indicating the intention to agree to the terms and conditions of the contract.
As per Section 2 of the ICT Act 2010 states that four physical characteristics must be satisfied for the effectiveness of such signatures and ensuring validity of its usage:
Identification of the signatory
Affix with the signatory uniquely
It has to be created in a safe manner or used in the means under the sole control of the signatory
Be related with the attached data in such a manner that is capable of identifying any alteration made in the data. So, any type of digital or E-sign will be considered ineffective, if the electronic record, related to that sign is tampered with.
Therefore, the signature must be under control of the person in question, it must be unique and the electronic data of which can be verified. For this purpose, the Government has introduced agencies and authorized entities who are capable enough of verifying a signature for the person in question and he/she can then use that signature in various documents. Despite of the fact that the ICT Act 2010 gave recognition to the use of digital signature or E-sign, but this matter is quite contradictory because no government authority can be forced to recognize this usage. Most of the foreign jurisdictions have accepted the usage and have adapted as per the new modern technology, especially when Covid-19 restricted all sorts of physical movement. But since, Bangladesh has a mix class of people starting from the educated class to the middle class, therefore, such an adaption is subjected to be a bit difficult.
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