Chris reed what is a signature

Research Artificial intelligence — responsibility, liability and regulation Cloud Computing Theories of regulation in cyberspace Cross-border regulation of online activities, electronic signatures, online banking and financial services, and all aspects of electronic commerce. Available at SSRN. A : Chris Reed In some cases the legislation specifically states that the signature is required to authenticate the document [ 72 ], whereas in others the fact that the purpose of the signature is to authenticate the document appears only from the context [ 73 ].

For example, regulation 9 of the Local Authorities Borrowing Regulations [ 74 ] does not expressly state that a signature is necessary, but by implication requires a signature for authentication purposes by providing that the registrar may ignore a written instrument of transfer or written instruction for payment which is not signed by the transferor or person to whom payments are due, unless there is produced to him such evidence as he may require that the effect of the document was intended by that person.

Legislative provisions requiring signatures as a means of authenticating a document appear to be in the majority, at least of the provisions whose purpose can be ascertained. It must be noted that in many instances there seems to be no particular reason why the enactment requires a signature, and it can only be concluded that these reflect the personal style of their draftsman. This is clearly the most fundamental matter to be evidenced by any signature method.

Where a document bears a manuscript signature it will be sufficient to adduce evidence of the alleged signatory's normal signature and its similarity to the signature on the document, and the evidential burden will then be on the alleged signatory to prove forgery [ 76 ].

In the case of an electronic signature it will not be possible to produce evidence of this kind, but extrinsic evidence of the alleged signatory's encryption keys or biometric signature characteristics will be admissible [ 77 ] and should give rise to the same presumption. The signature method used must provide evidence of an intention to sign [ 78 ]. This principle was explained in Pryor v.

Pryor [ 79 ] where a witness to a will signed in her husband's name. The court held that this was not a valid attestation because she had no intent to sign for herself; her intent was to make it appear that her husband had signed.

If the requisite intention to sign cannot be proved, it is irrelevant that the maker of the document can be identified. In Selby v. Selby [ 80 ] a letter which ended 'believe me the most affectionate of mothers' was held not to be signed for the purposes of the Statute of Frauds because it did not indicate an intention to sign, and thus be bound by its contents.

Grant MR said:. He is required to sign. And after you have identified, still the question remains, whether he has signed or not. There may be in the instrument a very sufficient description to answer the purpose of identification without a signing; that is, without the party having either put his name to it, or done some other act intended by him to be equivalent to the actual signature of the name But it was never said, because you may identify the writer, therefore, there is a signature within the meaning of the statute, if so, the word 'I' or 'me' would be enough, provided you can prove the handwriting.

Probably the most important evidence which must be provided by the signature method used is that it should demonstrate that the alleged signatory intended to authenticate the document and adopt it as his own. Thus in Ringham v. Hackett and Walmsley [ 82 ] the Court of Appeal held that the signature of a partner on a cheque which was printed with the partnership name evinced an intention to adopt the printing as a signature in the name of the partnership.

Lawton LJ said:. When, as in this case, the printed name is accompanied by a manuscript signature of one of the persons authorised to sign on behalf of the account, then there is prima facie evidence that the cheque is being drawn on the account on which it purports to be drawn.

The prima facie case may be rebutted by evidence. In this case the defendant tried to rebut the prima facie evidence derived from the appearance of the cheque itself. In that he was unsuccessful, because the learned judge did not accept that his recollection was accurate.

It follows, therefore, that the cheque was the cheque of the partnership and not a personal cheque The point was also considered in Central Motors Birmingham Ltd v. Here evidence of that mental element came from the circumstances in which the cheque was signed, which showed that the partner involved intended to adopt the firm's name on the cheque as part of the signature.

An interesting side-effect of the challenge posed by electronic signatures is that the question of whether a seal can function as a signature becomes relevant. The reason for this is that many of the electronic signature technologies require the signatory to use a numerical key to produce the signature see part below. The smallest useful keys are a minimum of 56 bits in length, offering a range of numbers between approximately ,,,, and 72,,,,, in decimal notation. These keys are too small for adequate security, however, and bit or larger keys are more desirable.

Numbers of this size are not easily memorable nor easily keyed in without error, and so the keys are normally stored on some physical device, such as a magnetic disk or a smart card. Signature is therefore performed by application of the physical device to the electronic document. This is a close, perhaps an exact, analogy to the application of a personal seal to a paper document. Indeed, the German Digital Signatures Act provides:. In England, the question whether sealing a document should be treated as equivalent to signing it arose almost immediately after the Statute of Frauds was passed.

Four years after the Statute in Lemayne v. Stanley [ 85 ] the court held that a will, written in the testator's own hand and sealed, but not signed, was nonetheless valid under the statute:.

The point appears not to have arisen again [ 86 ] but obiter statements were made to the effect that a seal was equally good evidence of adoption of a document as a signature would be. However, a series of cases in the early s contained obiter statements that seals were no longer acceptable on wills on the ground that they were too easy to forge:.

The justification seems largely to be that, had the legislature intended seals to be a valid method of attestation, it would have said so expressly. There do not appear to be any cases, however, which deny the validity of seals as signature methods for any other type of document with the exception of deeds [ 90 ]. It seems reasonably safe, therefore, to draw the conclusion that the courts are free to recognise seals as producing valid signatures if the particular use of the seal in question achieves the evidential functions discussed at parts to above.

Where legislation grants powers to a judicial or administrative body, it is common for the legislation to provide that the exercise of those powers should be validated by a signature. Thus signatures are commonly required for documents recording or certifying the decisions of judicial bodies [ 91 ] or of persons exercising statutory powers [ 92 ]. Signature requirements are particularly common where the activity to be validated would, in the absence of the statute, infringe human rights or property rights.

Thus a signature is required for the temporary imprisonment of army personnel [ 93 ], convening a court martial [ 94 ] or delaying the discharge of service personnel [ 95 ]. Property rights whose infringement requires authorisation by a signature include entry onto premises [ 96 ] and the detention of shipping.

Although very few non-consumer dealings require a signature [ 98 ], it is not unknown [ 99 ] for consumer protection statutes to provide that the consumer's signature is a necessary element of a transaction [ ].

It might be concluded from this that one possible function of a signature requirement is to act as a warning to the consumer that the transaction into which he is about to enter has serious or unexpected legal consequences [ ]. This conclusion would be incorrect. The basic techniques of consumer protection adopted by English law [ ] do not include the imposition of signature requirements [ ]. Instead the signature performs a secondary function; as evidence of the consumer's informed consent to the transaction.

The perceived mischief against which consumers need to be protected is that they will be presented with standard form contracts which are difficult for laymen to understand, and whose terms are not negotiable.

Nonetheless, the consumer should be free to choose to enter such a transaction, provided his choice is a genuine one. The risk is that the consumer will be ignorant of the real meaning and effect of the terms to which he is agreeing. The method of protecting him against that risk is to require the other party to provide specified information, often in a prescribed form, before the transaction is entered into [ ].

The consequences of failure to provide the information may be the commission of an offence [ ] or, more commonly, a refusal to enforce the transaction:. The consumer's signature merely supplements this method of protection by providing evidence a that the other party has supplied the required information, and b that the consumer has agreed to the terms. Thus, although signatures have a secondary effect in respect of consumer protection, this effect is achieved through their primary functions as evidence of identity and agreement.

As the discussion in part above demonstrates, where no requirement of form is imposed by legislation the courts appear to determine the validity of signature methods by reference to the functions that the method performs. Electronic signatures can perform all the functions currently required by case law and legislation see part below. However, the thing to be signed, an electronic document, exists more as a matter of metaphysics [ ] than as a physical object.

For this reason it is very difficult for an electronic signature method to meet any physical requirement of form [ ]. If the law were to require a valid signature to take the form of a mark on a document, it is unlikely that any electronic signature method would be held valid. A mark, in relation to a hard copy document, has the characteristics of visibility and physical alteration of the thing which is marked. Two of the three ways [ ] in which an electronic document may be 'signed' do not produce documents which exhibit these characteristics.

A distinction must be made between the information content of a document and the carrier of that information. In the case of a physical signature of a hard copy document, the signature both makes a physical alteration to the carrier i. By contrast, an electronic signature only alters the information content of the document. Any change to the carrier is merely incidental, and is not linked inextricably to the document in the same way as a hard copy signature is linked to the writing.

For example, the signatory's name or hieroglyph may be added to the document, either as a series of codes, such as ASCII [ ], which represent the letters of the name, or as a digital image of the manuscript signature.

In either event, all that is added to the document is a set of 1s and 0s. These can be made visible to the eye if the document is printed out or displayed on a screen, but because the document itself is either the set of binary integers bits which comprise it or the carrier on which they are stored [ ], neither the contents of the document nor the attached signature is visible.

Furthermore, although attaching the 'signature' to the document makes a physical alteration to the storage medium on which the document is held [ ], that alteration takes place at the microscopic level [ ] and is conceptually very different from the kind of physical alteration to the document envisaged in the cases - indeed, the bits which make up the document are not altered, merely added to.

Alternatively, an electronic document may be signed by the use of a mathematical function based on the document's data content [ ]. An electronic signature of this type can meet all the law's evidential requirements for signatures, but can only be considered as a logical or metaphysical mark in that it is in many respects functionally equivalent to a mark on paper, primarily because it cannot easily be altered without leaving some trace.

This process can be undertaken in a way that will easily produce evidence of the intention to sign and authenticate the signatory and the electronic document's contents, but the result is if anything less visible than and equally as metaphysical as adding text or an image. This problem would not exist if the courts were to take the view that the old cases requiring a mark should be interpreted in the light of modern digital communications, so that 'marking' the document would mean an irreversible [ ] change to its data content [ ].

The case of Clipper Maritime Ltd v. Shirlstar Container Transport Ltd the 'Anemone' [ ] indicates that at least one judge has been prepared to consider the possibility that a telex might be signed via the technology used for its transmission, although the characteristics which such a signature would need to exhibit will need to be elaborated further. In that case Staughton J, considering whether a telex might constitute a guarantee in writing and signed for the purpose of the Statute of Frauds , said obiter:.

Telexes are transmitted in digital form [ ], and so at first sight the case seems to suggest that an electronic document can be signed by some method which identifies the signatory and authenticates and approves the document's contents. Unfortunately there are a number of points which were not examined in the judgment:. In the case in question there was no dispute that the telex had been sent nor as to its contents, so only the first two points would be relevant to the question of signature.

If in another case there were to be such a dispute, all four points would weigh strongly against any suggestion that the telex could be treated as signed. Nonetheless, the case can be seen as a first step towards holding that the old cases requiring a mark to be made should be read in their historical context, on the grounds that modern digital communications has become such a widespread method of transmitting documents that the requirement for a mark is now meaningless.

In that event, attention would need to focus on the technical method by which the electronic document was signed, and on whether the requisite level of identification of the signatory, authentication and evidence of adoption of its contents had been achieved.

The existing legislation requiring signatures gives little indication of a move from form to function. Only two enactments have been discovered which make express provision for the signature of documents which will not be in normal hard copy form. Both appear to preclude the use of an electronic signature. The clearest is reg. The regulation is interesting because it expressly permits documents to be transmitted electronically.

However, by providing in sub-section 4 b that where the electronic transmission is otherwise than by fax the documents do not need to be signed, the legislature seems clearly to have assumed that those electronic documents are incapable of signature. The other provision is contained in Order 50, rule 6A of the County Court Rules [ ] which is headed 'Signature of documents by mechanical means'.

It provides:. The reference to printing seems to envisage that the computer is merely the means of applying the signature to a hard copy document, and thus offers no evidence of a move from form to function. The problem with electronic documents is that they represent their information content text, graphics and control characters that define the document's layout, emphasis etc. When an electronic document is edited, the new version is saved to disk and replaces the old version.

The change in the set of numbers cannot normally be discovered by examining the document itself. An electronic signature is produced by performing a mathematical function on the document, or part of it, which identifies the signatory and authenticates the contents of the document.

To be an effective signature, the modified document must be producible only by the maker, and any attempt to change the content of the document must invalidate the signature. Electronic signatures have been made possible by the advances in cryptography since the end of World War II. An electronic document is merely a string of 1s and 0s, and can therefore be treated as a series of numbers [ ]. Encryption is carried out by performing a series of mathematical functions an encryption algorithm which has two inputs; the series of numbers which represents the document the plaintext , and a key , which is itself a number.

The result is a series of different numbers, the ciphertext. There are two distinct types of encryption algorithm:. Single key encryption uses the same key to encrypt and decrypt, and thus the key needs to be known to both the sender and the recipient of a document.

Public key encryption uses two different keys, each of which will decrypt documents encrypted by the other key. This means that one key can be kept secret, while the other is made public.

All effective electronic signature techniques require the use of a 'one-way function'. This means that if a document, signed electronically by A, is sent to B, B must be able to decrypt the document or its signature element, but must not be able to re-encrypt it with A's key. All encryption can be broken given sufficient time and computing resources. The effectiveness of encryption as a method of signing electronic documents relies on the fact that it is computationally infeasible [ ] to break the encryption method, and thus become able to forge the signature, within a reasonable period of time.

DES is a complicated form of encryption which is normally effected in hardware, but in essence it requires a key which is common to sender and recipient and kept secret from all others. This key is used to scramble the document to such a degree that it is computationally infeasible [ ] to unscramble it without knowing the key. The fact that a document is DES encrypted can therefore provide extremely strong evidence that it could have emanated only from one or other of the keyholders.

This, however, does not authenticate it fully as both parties have the key. Either could alter the contents of the document and then re-encrypt it. The alteration would be undetectable, and the court would still be left with two documents, each claimed to be authentic. However, techniques have been invented which enable one-way functions, encryption which can only have been performed by one of the parties, to be performed using DES and thus to create a digital signature of the electronic document.

One of the best known public key encryption methods is RSA [ ]. The two keys are formed of pairs of integers: k s and n for the secret key, and k p and n for the public key. The key pair k p and n is made public. A document is encrypted by breaking its digital form into blocks, each of which is treated as a single number, raising each number to the power of k s or k p depending on whether the secret or public key is being used and then calculating the result modulus n [ ].

The document is decrypted using the same algorithm with the other key pair. The effective security of the RSA algorithm depends on mathematical proof of the fact that, because of the way k p , k s and n are derived, it is computationally infeasible to calculate k s knowing only k p and n. The RSA algorithm was originally devised to allow encrypted messages to be sent to the holder of the secret key, which only he would be able to decipher. It concludes that, provided a signature technology produces acceptable evidence of the required elements of a signature , an electronic signature produced thereby should be treated as legally valid under English law.

The article concludes with an examination of the likely future development of electronic signature law, concentrating on recent EU and UK legislation. Introduction 1. In spite of this, the signature as a legal artefact has received very little analytical attention. Variations on this theme have been considered by the English courts from time to time, ranging from simple modifications such as crosses 4 or initials 5 , through pseudonyms 6 and identifying phrases 7 , to printed names 8 and rubber stamps.

Analogies with manuscript signatures may no longer be appropriate or even possible. These fall into three basic types: the remote production of a document bearing a signature, for example where a document is sent by telex or by facsimile transmission fax.