Electronic signatures or E-signatures have become increasingly popular over the last few years because they offer a convenient and efficient alternative to traditional handwritten signatures. With their growing use, it is a great concern whether one can use them in legally binding documents like contracts.
The Kenya Information and Communication Act defines an electronic signature as data in electronic form affixed to or logically associated with other electronic data used to identify the signatory in relation to the data in question and to indicate their approval of the information in the data message in question.
The act also recognizes advanced electronic signatures. These are uniquely linked to and capable of identifying the signatory, created using means that the signatory can maintain under their sole control, and are capable of identifying changes to the data after signing.
Advanced electronic signatures use modern technology and comprise a series of encrypted data attached to the electronic message. They use different techniques to maintain the integrity of the data such as one-time passwords (OTP), cards of coordinates and cryptographic techniques among others to maintain the inviolability of a document.
The Act further recognizes the use of advanced electronic signatures in electronic messages as legally binding. It further acknowledges electronic signatures as legally binding when affixed on any document that requires a signature. The Business Laws Amendment Act, 2020 officially allowed the use of electronic signatures in contracts.
In essence, the law does allow the use of electronic signatures in corporate and commercial documents. Considering the important nature of the data contained in corporate commercial documents, it is important for a business to practise various safeguards while using electronic signatures: –
- Use signature providers or technology that keeps an audit trail and proof of the transaction. These provide a record of when a document was viewed, opened, or signed and the signer’s geolocation.
- Incorporate the use of Certificates of Completion. This serves as evidence or proof of e-signature and indicates that the signer agreed to use an electronic signature in a certain document. This comes in handy when one required by the courts to prove the validity of an e-signature.
- Utilize advanced electronic signatures with tamper evident seals that show that a document has not been tampered with and track any changes made to the document.
Electronic signatures are an easy, cheaper, and convenient way of signing documents from anywhere and without paper trails. However, they come with the higher risk of forgery, inauthenticity and data breaches. It is thus pertinent to use them with a security-first approach in mind.