Electronic signature: a secure solution for social distancing
Thanks to the technological revolution of recent years, an increasing number of companies are abandoning paper documents to use technological tools and electronic media. With the situation of confinement in Quebec which has extended to May 4th,2020, the electronic signature is, therefore, a secure and effective solution for companies that wish to continue their activities and conclude remote transactions.
By adopting the Act to establish a legal framework for information technology, the legislation came to recognize different forms of signatures [1] whether handwritten, biophysical or electronic. What comes out is not the signing process, but the importance of establishing a person’s identity, consent and intention to be linked to an official document.
Many electronic signature solutions have been developed to allow documents to be signed via a computer or smart device. You must first assess them and read their terms and conditions before making the choice to sign documents securely. Although the electronic signature is qualified as a “signature” by Law, the proof of the integrity and the origin of this signature should not be overlooked. [2]
There are also several things to consider before using an electronic signature. Here are some questions to ask:
- Does the solution meet the criteria to guarantee the identity and consent of the signatory?
- Where is the supplier’s data stored to ensure the confidentiality of the process and of the rules that apply?
- Does the electronic solution comply with the Civil Code of Québec and Québec laws regarding evidence?
Distinguishing electronic and digital signatures
The two types of signatures do not have the same level of reliability. The electronic signature generally represents a signature affixed on electronic support. This is the case of a handwritten signature that has been scanned, email signatures, clicking on an “I agree” button, typing a name in a PDF file or any other similar concept.
The digital signature is also an electronic signature, which uses a cryptographic (encryption) mechanism to guarantee the confidentiality and integrity of the document, as well as the authentication of the signatory. Basically, the digital signature is characterized as authentic by proof of the identity of the signatory, tamper-proof, non-reusable, unalterable and irrevocable.
Therefore, the digital signature is the safest method of signing documents remotely. CertifiO and ConsignO are examples that meet the above criteria [3].
The following points should also be considered when choosing a technology program so that it:
- allows a simple authentication of the signatories by sending them a password by SMS or by email to identify them
- allows the signing of multiple people
- allows you to sign multiple documents
- allows you to follow the status of documents and send notifications
In any event, recent case-law indicates that the courts have been fairly permissive [4] in assessing the signature since the use of technology has become common practice. They confirm that interpretation must be done in context [5] by focusing on any particular technology or support. However, the basic functions of identification and consent need to be demonstrated, regardless of whether the signature is handwritten or electronic.
To avoid any unpleasant surprises, we recommend opting for the digital signature rather than the electronic signature with an image or PDF.
[1] Article 39 of the Act to establish a legal framework for information technology; Article 2027 of the Civil Code of Québec;
[2] Antoine GUILMAIN et François SÉNÉCAL, « Commentaire sur la décision Tabet c. Equityfeed Corporation — Signature électronique : deux pas en avant… trois pas en arrière ! » Repères, Septembre 2017, EYB2017REP2301;
[3] Note: This follows from a summary review of the terms and conditions as of the date hereof.
[4] View Online: http://www.lccjti.ca/definitions/signature
[5] R. c. McIvor, [2008] 1 R.C.S. 285, EYB 2008-131142, par. 30.v