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Bluebook 21st ed.

John D. Gregory, Must E-Signatures Be Reliable, 10 DIGITAL EVIDENCE & ELEC. Signature
L. REV. 67 (2013).

ALWD 7th ed.

John D. Gregory, Must E-Signatures Be Reliable, 10 Digital Evidence & Elec. Signature
L. Rev. 67 (2013).

APA 7th ed.

Gregory, J. D. (2013). Must E-Signatures Be Reliable. Digital Evidence and Electronic
Signature Law Review, 10, 67-70.

Chicago 17th ed.

John D. Gregory, "Must E-Signatures Be Reliable," Digital Evidence and Electronic
Signature Law Review 10 (2013): 67-70

McGill Guide 9th ed.

John D. Gregory, "Must E-Signatures Be Reliable" (2013) 10 Digital Evidence & Elec
Signature L Rev 67.

AGLC 4th ed.

John D. Gregory, 'Must E-Signatures Be Reliable' (2013) 10 Digital Evidence and
Electronic Signature Law Review 67

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Gregory, John D. "Must E-Signatures Be Reliable." Digital Evidence and Electronic
Signature Law Review, 10, 2013, pp. 67-70. HeinOnline.

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John D. Gregory, 'Must E-Signatures Be Reliable' (2013) 10 Digital Evidence & Elec
Signature L Rev 67

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 eIS
I no tcriticize5 statutory requirement inat ine
validity of an electronic signature depends on Its bein
as reliable as appropriate inthe circumstances. This
requirement unfairly discriminates against electronic
signatures (having no equivalent for signatures
on paper. Lommon tawauoes not imp )OS ry tor
requirements on what can be a signa Iture, so no statutory
standard is needed to support an e-si gnature. The law
should not impose a standard of prud ence that must vary
among transactions and among parti st them. Finally,
the reliability standard risks invalida utng e-sigi atures
that are demonstrably genuie. Neit her consur er
protection nor high security needs justify the g reric
reliability rule.
The United Natior lodel Law on Electronic Cor merce
or 199 6,1 the basis for the laws on electronic t 5actions
inma ny countries around the world, provides
the [a%w requires a signature, the requirement
by a mrethod that identifies the person who is posed
to sigrn, indicates his or her approval of the inforrr ation,
and 't hat method is as reliable as was approp )riat ?for
the pu rpose for which the data message was erated
or comrmunicated, inthe light of all the circurr tar
including any rete n the risk that the signature is not genui ne, so he or she
am very sc :e ptical of any legal requin
electronic sig naltures must be as reliablI 3ropri
inthe circums tances. We thought of using such a
requirement vhen wedrafted the Uniform Electrol
Commerce A t3 in Canada, and decided against it.'TI
official comm entary on the Uniform Act says this:
iough the UN Model Law makes an electronic
lature meet a test of appropriate reliability in corder
eet
to mT a signature requirement, the Uniform Law
Con ference felt that such a test would detract fro mthe
M edia neutrality" of the Uniform Act. However, wvhere
authorities resonsible for a signature reauire
Wo
tal~e ine view rinaine requirement aoes imply some
degree of reliability of identification or of association
with the document to be signed, they may under
subsection (2) make a regulation to impose a reliabili
standard. The language of subsection (2) is based on
that in the Model Law.
All of the common law provinces and a 11the territories
have implemented the Uniform Act and all but two
have maintained the open-ended provi sion of that Act.
None has made a regulation of the kincddescribed in
the annotation. Manitoba5 requires reli ability for an
electronic signature on 'a document of a prescribed class'
though none seems to have been pres(cribed yet. Prince
Edward Island has a definition of 'elec tronic signature'
derived from the UN Model Law on Ele ctronic Signatures,
though its parliamentary debates give no reasons for
this deviation from the Uniform Act, ot herwise closely
adhered to, and no courts appear to have been called on
to interpret the provision.
The first reason for not having a relia bility rule is that
there is no such rule for handwritten si gnatures (or any of
the other marks on paper that may con istitute a signature
at law). The person relying on a signat ure always takes
:ordingly. That is to say, the relying party et 3ll
risk that the signature is not genuine and protects
Iself
or herself or itself accordingly. T'his may involv
?cking the signature a0ainst known g 'enuine versior
of it, or getting the signa- irn ed, or getting th
signature notarized, or g nature guarant, Ad
by a ban k,or various oth s. The risk anal
will of course include thE :0st of ha ng the signatur
made more reliable and ie cost of 0 gen
being not
So a course of dealings with the purported signer, or a
low-value transaction, may persuade someone to rely on
a signature that from a s tranger or for a high value would
not be satisfactory.
1_J
 These ons and jud ents are not hnique or technology. The reliability of the context to
of law b ter of pruden< The law app licable to do-this can be shown for electronic signatures as it can
electror ars can be t same. for handwritten or otherwise mechanically nroduced
cond, the common law does not lose any rorm signatures, without a spe cial statutory rule,
irement on sinatures - which rr isit is arguablE Third, in my view law r eform should not ri
:hat an electron icsignature is a good signature wit OU flexibility of the common law. There are ma P0E
tny
law reform. common
07At law, I can sign someth where the law will give e ffect to practices t lot
by authorizingc someone else to sign my name - ME be prudent for people to rage in. People are expect ed
:hnat a handwritl,ten signature may not took like wh to be prudent. An ' in p( it on a piece of disposablE
ould write but is mine and enforceable against mi tissue paper can t legat t los
nonetheless. (There are questions of proof in all of people would not iluable contract made on
-and so there are in e-signature questions - but th such a medium w ignature, because the risks
50hould not dist(ort the law on the point.) Likewise I are too great.
e (with the same practical question s).f Part of the challenge is that people have mar y years
can sign by a machine that prints my nam le - possibly 1I of experience in evaluating how reliable a sign ature on
not necessarily inthe form of my handwri tten signatun paper is, and thus can judge what is prudent. P eople are
-then why should I not sign with a machi ne that create much less familiar with the potentials and vuln, erabilitie.
electrons that link me with the text? of methods of signing electronically. However, Iwould
The basic - arguably the only- commo nfunction of submit that the law does not add any value to t his lack
a signature is to link a person (i.e. legal e ntity) with a of familiarity with an 'appropriate reliability'te
document.8 Nothing in the form of the sig unature
states a test merely transfers the prudential judgmen t trol
legal effs of that link. iot k~now the link the relying party to a judgE 10 m o more
hout kno% ig the conte. tart th the obviou competent to make it, tho eor
estion whi the documei arE advantage of expert evider riay be a complicated
(or to iI ture relates). The context will av decision. The Guide to Ena of the Model Law on
have to be demonstrated, whether or ar or electror ommerce sets out fourteen different considerations
Some times that will be hard most of me it will be for 'the circumstances' inwhich a signing method is to I
u ged reliable." Such considerations are also availabl
>orta nt point remains: it is not the form of to the relying party - at a more useful time, before the
tne signatur gives it any legal effect. Therefore at tra nsaction is consummated.
information (medium that is capable of linking a The Federal Court of a decided in Getup Ltc
legal entity v document (electronic or paper or oth r) 0rot 0r :hat indeed the entity
should be at le to be a signature at law. to which the e-signature was submitted, and w hIi ch
There is a antal element in a signature: the pe rsor was intended to rely on it, did not have the powver to
to sign
0tention the document, thou determine its reliability. Only the court could dc o)this.
the reason fort intention
0hemay vary. The Uniforr other words, the parties to a communication us ;ing ai
Electronic Com merce Act defined an electronic sigi arE electronic signature are always subject to havin ig the ir
by saying it wa s 'created or adopted in order to sig choices held invalid by a court - or in the Getup
document'.1o In other words, it incorporated the sa me held valid though the party intended to rely on it did no
mentatelemen t for e-signatures that the (commonn)lai think it was sufficiently reliable for its purposes . Either
requires forall signature de no legal distinction way, this seems undesirable. (in common-law Canada,
arpose or ntion of id the Getup decision would have gone the other way, botl
:hose of ature on p r. That n tat elE because the applicable statutes do not compel anyone
Nill be s own, once again v the cor <t to accept an electronic communication - as dis cussed ir
50aying '-cigned by') rather of a particular more detail below -and because a government tor publi

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12 1201C
body may in additior ipose its mrormatior lolos I would atso! li t of tests in theM odeI
requirements on any :omins e-document1or are Law on Ele ctror irticle 6(3)) addst11
to ensure compatibillity with its s, d it! ids of real valu ;well, bi iwhole different si at
of reliability.3) 3rguments. It vould of ot usually be harder to
Fourth, a reliabilit yrequiremen t risks 0ecoming a 3rove comli chnical standard than to
trap for the unwary, or a potentia t loophole for the document directly
unscrupulous. One can readily imagine a situation It is wort not ng that the U0N Cor v on the Use o
0ention
where the relying pa rty knows th e person who creat ed Electronic C om in Inter ational Contracts,"
0unications
an electronic signat ure and there no0isquestion abo adopted in 2oo05 expanded on the rounds for validity
the link to a docume to avoid an agreement of electroni gnatures.BBesi(de reliability test,
by saying 'yes, I know all that, but the me thod of the o rously con tested at the meeting where
e-signature was not reliable enough fort his transaction, the Convention was adop ited,6 the Convention allows for
so the signature, and thus the transactio n, cannot be validity of a me thod of ide ntifying a person and indicating
valid.'The person who created the signat ure cannot knov the person's intention in respect of information if the
at the time of creating it - at the time of t he e-transaction method is'pro\ to have fulfilled the functions
that the 'enabling' legislation is intended to facilitate - described in su 3ragraph (a) abo self or toget er
whether a court will hold it to be appropr iately reliable. further evidence." ition in >ractice, no
The other party can argue it is not that re liable, in bad n principle, can be law.
faith, possibly. For that matter, the perso n creating the onsumer protectio to ny argumen
0tion
signature mignt use tne same argument: Yes, Isigned it, against a reliability test, since consumers may be even
but it did not meet the legal test for validit It less able to judge prudence of accepting an e-signature
Probably most court systems would resi st allowing than a commercial party? I doubt that consumers would
r. d
either of the parties to a signed documentI to use this kind be helped by an open-ended reliability requirement
of argument to invalidate a transaction the y participated either. They too can be trapped by it. Consumers probablj
in.The more substantial risk is an attack o nthat ground need to know identity more than they need to see a
by a third party, someone not involved in t he transaction signature as such demonstrated. So consumer protection
but who has a motive to invalidate it. One tthinks of ine-commerce should depend more on enforcing full
tax authorities, trustees in bankruptcy, pos5sibly even disclosure of identity, place of business, and rights
ex-spouses, who would like to see assets cowned by one and remedies for the transaction than the artificial
party and not by another. Because of the c lomplexity of and generally irrelevant consideration of the form of a
the evaluation, as noted above, a judge COuld readily signature.1
come to a different conclusion than the pa rties on the All this discussion assu mes that there actually are rt
reliability question. It is not clear what pub ltic interest is of law that require a signa ture, since if there are not,
serve d by such a result. the enabling legislation ba sed on the Model Laws does
short, the reliability test does not deal with w not apply at all. It does no t apply to support or weaken
es should reasonably b expected to ascertai 0 a signature on a private tr ansaction not covered by any
d what for what purpos e? It adds an unforese >le statutory requirement. All Ithe more reason not to have
21E ent, an optional escape method, for attacking any unpredictable technic aI demands. In the few cases
0ignature with respect to which all re nt questions when the issue maycome up, the parties will be even le
3re answered. And it does not help an ar any of those Doophole.
independently.
0uestions Unifort t in Canada leaves reliability
to the parties is consent rule. it say othing in ircumstar ces. In cases needing extra security, one
the Act requires Vperson to use or a informatior ould argu ably want to be less technology neutral and
:n mlmrfrnnsr enr, o gI r .riotive.Another Canadian example: Ontario'c
document, or an electronic signature, then one can electronic system for registE land tra rter d idE
it if it is sufficiently reliable - not in some abstracts on a thoroughly prescribed vork of di tal 3tures
not in a way determined by a judge two years later, and identities certified by th 0w
Societ
at the time of use. The consent rule, in other words, Nc)ne of this justifies restricting people signing normal
the notenial relatina nr I a nnr rtunitaripl
clur~ drior ments electronically to a standard of reliabili ythat
Ie
electror ng method is satisfactory to it. Ifnot sound in theory and misleading or even dang ?rous ir
e party ca on paperdocumentation. 3rz
There ma, :ase for spelling out more detailed
auiremen vnere gnatures must be more reliable hn D.Gregor
at, or, rhenhe decision on reliability should
not e lelft to tl diate parties to the documents.
Th addi tional0 caution applies to handwritten signatur
ell. Comm lotn law jurisdictions often provide, for
iple, ills req uires two signatures of witnesse
both presentI at the sar e time and! ning at the sar
time. Canada' s statute! to this effe 3re excluded
from our ele ronic con nerce statt
a generic reliz bility tesl adds little protection to

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