What are electronic signatures and digital signatures?
An electronic signature is any mark, characteristic, or sound which represents a person’s identity electronically. It must be affixed to an electronic message or document for the purpose of authenticating or proving the same.
Section 2(e), Rule 5 of the E Commerce Act of 2000, defines an Electronic Signature as any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document.
On the other hand, a digital signature is an electronic signature which transforms an electronic document or message using a public cryptosystem.They are more secure since they are encrypted through private and public keys. The private keys create the digital signature, while the public keys verify the same.
With a digital signature, a person can determine whether such transformation was created using the signer’s private and public keys, and whether the electronic document has been altered after its transformation.
All Digital Signatures are a form of Electronic Signature, but not all Electronic Signatures are Digital Signatures.
Is an electronic signature the same as scanning your signature, cutting, and pasting it in the document?
No. While scanning your handwritten signature and pasting it as an image on a document is a common practice, it is not the same as having an eSignature. A scanned copy is not an original; it is a mere photocopy. Anyone can use that image and affix it on any document. Doubt as to the identity of the signatory and his/her consent may arise. Electronic and digital signatures offer more protection in that it addresses the issue of authenticity and protects the integrity of the electronic document.
How do you generate an electronic signature ?
There are software applications that can create electronic signatures such as DocuSign, Adobe Sign, and Twala. These are readily available for download online.
How do you generate a digital signature ?
There are third-party websites that can generate electronic/digital signatures. They are encrypted through private and public keys that people can use to secure files sent through the internet.
In the Philippines, one authority that issues and authenticates digital signature certificates is the Philippine National Public Key Infrastructure (PNPKI).
Where can you use an electronic signature or digital signature?
Any kind of electronic document used in both commercial and non-commercial dealings may be signed electronically. However, since a digital signature offers more protection by authenticating the electronic document and the signer’s identity, this type of signature is a secure tool for confidential dealings, such as legal documents, contracts, and agreements. An electronic signature will suffice for ordinary correspondence such as letters or memos.
How does an electronically signed document affect the Best Evidence Rule?
The Best Evidence Rule under Sec. 3, Rule 130 of the Rules of Court states that, as a general rule, the only evidence you can present is the original document itself. The E-Commerce Act provides that whenever information needs to be presented in its original form, the following requirements must be met:
- The integrity of the of the information contained in the electronic document must be shown by evidence aliunde, i.e., evidence other than the electronic document itself; and
- It must be possible to display the information contained in the electronic document.
Simply stated, “an electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.”
How does one prove, authenticate, and present an electronically signed document in Court?
Under the E-Commerce Act, an electronic document shall be authenticated by showing that a security procedure was used to verify the origin of such electronic document and detect any error or alteration made by using algorithms, codes, encryptions, and other security measures. Under the Rules on Electronic Evidence, however, there are added requirements to authenticate an electronic document in that there must be evidence showing it had been signed digitally by the person who was supposed to sign the same and evidence to show its integrity and reliability to the judge’s satisfaction.
If a person wishes to present an electronic document in a legal proceeding, he/she has the burden to prove its authenticity and that it is what he/she claims it to be.
Is an electronically signed document a valid document?
Yes. An electronically signed document is as valid as a person’s signature on a written document if it falls under the definition of what an electronic signature is under the E-Commerce Act. It must also be shown that a procedure was used to electronically sign the documents in such a way that alteration by any interested party would not be possible. Such procedure must also prove to be reliable and identify the party sought to be bound by such electronic document.
The Supreme Court, in the case of AES Watch v. COMELEC, has also upheld the validity and legality of electronic documents and signatures.
In what kind of contracts are electronic signature not allowed?
Generally, contracts are binding between the parties in whatever form they are entered so long as all the requisites for its validity are present.
However, when a document is required to be notarized for its validity or enforceability, an electronically or digitally signed document may not be sufficient.
Can you notarize a document that has been electronically signed?
We are of the opinion that the existing rules as of the time of this writing does not clearly yet contemplate a document executed via digital or electronic signature. The Supreme Court have yet to issue rules as regards notarizing electronically or digitally signed documents. The Rules on Notarial Practice, as worded, still requires a person to appear personally before the notary public, present an integrally complete document, and represent that such document and the signature affixed thereon was done by him freely and voluntarily.
Does the Rule on Remote Notarization apply to electronically signed documents?
No. Under the Rules on Remote Notarization of Paper Documents, the scope of its applicability is limited only to paper documents and instruments with handwritten signatures.
Source and Reference:
- Rep. Act No. 8792 (2000) (“RA 8792)
- Rules in Electronic Evidence and Rules of Court
- Caliwan, Emmanuel. Electronic and Digital Signature in the Philippines: A Legal Discussion (Medium: 2021) https://sociojuris.medium.com/use-oelectronic-and-digital-signature-in-the-philippines-a-legal-discussion-2868896d4180
- Nageotte, Agathe. Is the scanned signature legally valid? (Oodrive: 2022) https://www.oodrive.com/blog/uncategorized/is_scanned_signature_legally_valid/
- . (GOVPH) https://dict.gov.ph/frequently-asked-questions-pnpki/
- DPO Advisory, Reference No. EBM 20-22
- RA 8792, The Electronic Commerce Act of 2000
- Siao, John Philip. Electronic and Digital Signatures (Inquirer: 2022) https://business.inquirer.net/359724/electronic-digital-signatures
- G.R. No. 246332, December 9, 2020
- Civil Code of the Philippines, Art. 1356
- 2004 Rules on Notarial Practice, Rule II, Sec. 1
- 2020 Rules on Remote Notarization of Paper Documents, Sec. 2
