Introduction

1. Computerised communications are speedier, more accurate and cheaper than paper-based systems. Their use is therefore rapidly increasing and this has led to the enactment of the Electronic Communications Act 2000. Digital signatures can be attached to or incorporated into electronic documents sent by computer: they fulfil the purposes of manuscript signatures and are used to perform additional functions. These Guidelines focus on the issues of authenticity and integrity of electronic documents. The text does not consider all the issues that may arise out of the use of digital signatures. It is hoped, however, that it will assist judges who manage litigation concerning their use to refine the issues in dispute and to narrow the range of evidence that the parties need to adduce.

2. The Guidelines describe the practical steps in the creation and use of digital signatures. Using lay, rather than mathematical, terms the text provides an elementary explanation of the type of digital signature technology that is currently most commonly used in commercial activities. There is a glossary that explains technical terminology that judges may encounter in expert reports. It includes a basic explanation of how computers work in an entry called computerised communications. Bold italics are used to highlight words in the text which are explained in the glossary.

3. A manuscript signature serves a number of functions:

• It is evidence as to the identity of the maker of the document in that it identifies the signatory with the signed document;
• It may express the signatory’s approval of the content of the document or his intention that it should have legal effect;
• It calls to the attention of the signatory the significance of his act and therefore helps prevent the signatory from entering into commitments without due consideration of what he is doing.

4. Digital signature technology can perform those functions and can produce evidence of the integrity of a signed electronic document that is more reliable than paper and manuscript signature. These Guidelines explain how digital signature technology can provide evidence that:

• The person who purports to be the signatory has signed the electronic document;
• The content of the electronic document is what the signatory signed.

5. The text explains that digital signatures can form part of the evidence used to prove that:

• The person to whom the electronic document was sent received it, and
• That an electronic document was sent and received at particular times. It also explains that:
• Similar technology is used to ensure that the document was confidential to the sender and to the receiver.

6. There are a number of relevant domestic and international legislative measures.

The Electronic Communications Act 2000 is intended to facilitate the use of electronic communications. It renders admissible “electronic signatures” which are defined very widely and include digital signatures. It also makes provision for a scheme for the voluntary registration of those providing cryptography services, which may include certifying elements of digital signatures. It does not itself authorise the use of electronic signatures where the law requires a traditional means of signing to be used. The Act will enable secondary legislation to be used to amend statutory requirements that amount to obstacles to the use of electronic communications.
The EU Electronic Signatures Directive has to be implemented by 19 July 2001. It sets out a legal framework for the use of electronic signatures which includes detailed provisions as to the recognition of digital signatures throughout the European Union.

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