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Those functions can be easily achieved by current mature technology-----electronic signatures or digital signatures.
Model law admits the legality of electronic signatures although this provision is not particularly designed for the admissibility of electronic signatures. In any legal proceedings, electronic signatures can not be denied on the sole ground that they are data messages or they are not in their original forms. If the integrity of information can be maintained and originator of the information can be identified by electronic signatures, they should be given the same evidential weight as manuscript signatures.
C Brief Introduction to Digital Signatures.
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.” The most common form of electronic signatures is known as the public key cryptography. The sender of a message has two keys: one is the private key and the other is the public key. The sender uses the private key to encrypt the message which is going to be sent to the recipient. When the recipient receives the encrypted message, it can get the public key of the sender from the particular certification authority (CA) and use it to decrypt the encrypted message.
1 Significance of electronic signatures
The significance of this technology is that it is not possible for the sender to deny it sent the message and for the recipient to deny it received the message. Both the sender and the recipient are not likely to change the original messages. Under reliable electronic signature technology, “any alteration made to that information after the time of signing is detectable”.
2 Technological neutrality and its problem
Since Model Law and ETB adopt a principle of technical neutrality, any particular digital signature will be examined by the courts in terms of art 9 (2) or the equivalent domestic legislation. There is a risk that a certain kind of technology will not be recognised by the courts. In order to guarantee the effectiveness of the digital signature and therefore achieve the purpose of non-repudiation, the useful solution is to specify the intended signature method in the contract. Even though both sides know the method is not completely secure and the court is likely to reach the same conclusion, the method will still be used to judge the originality, authenticity and integrity of the contract.
3 Consent to the use of electronic signatures.
According to the ETB of New Zealand, in case of a signature is required by the law, electronic signatures will not give rise to legal effect unless both parties agree to use the electronic signatures. As a result, it becomes essential to incorporate a term into the offer that both parties agree to use a certain kind of electronic signature technology and regard the electronic signatures the same as manual signatures.
D Admissibility of a Simple Email Signature.
Under the common law, signatures have broad interpretations. In Goodman v. J. Eban Ltd it was held that there was “no distinction between using a pen or a pencil and using a stamp, where the impression is put upon the paper by the proper hand of the party signing” and therefore validated the use of a rubber stamp as a signature. In Re a Debtor Judge Laddie extended the explanation of signature in conjunction with modern technology and held that a faxed copy of a signature satisfied a relevant statutory signature requirement.
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