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E-signatures
An electronic signature is broadly defined under the ECA as “any letter, character, number, sound or any other symbol or any combination thereof created in an electronic form adopted by a person as a signature”.
According to the ECA, if there is a requirement for a signature of a person on an electronic document, this is fulfilled by an electronic signature which is:
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attached to or logically associated with the document;
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adequately identifies the signer and his approval of the information to which the signature relates; and
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is as reliable as is appropriate given the purpose and circumstances for which the signature is required.
To demonstrate fulfillment of the reliability test above, three further conditions need to be met. These are that
(i) the means of creating the electronic signature is linked to and under the control of the signer only;
(ii) any change to the e-signature post signing is detectable; and
(iii) any change to the document post signing is detectable.
The above further conditions regarding detectability of changes post-signing might present a challenge when it comes to simpler e-signature tools, such as those that only provide a PDF image of a signature. It is difficult to see how such tools, without anything further, can convincingly be said to suffice. It appears though that there are some alternative ‘middle ground’ e-signature tools in the market – stopping short of digital signatures – which do offer a built in tamper evidence function. These would seem to be less risky options for meeting these specific conditions.
There has not been much in the form of case law expanding on the practical meaning of each of the above ECA tests in the event of a dispute. However, the recent case of Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLRA 316 does illustrate that point (b) above regarding identifying the signer is not necessarily a very difficult threshold to meet. In that case, it was held that even a simple SMS could fulfil the legal requirement for a signature:
ECA legislated that…where any law required a signature of a person on a document, the requirement of the law…by an electronic signature subject to the collective demands of subparagraphs (a) to (c). For purposes of this appeal, the legal requirement for a signature was fulfilled as, inter alia, the sender was adequately identified…
The telephone number of the respondent from which the SMS was sent confirmed that it came from the respondent as the registered owner of that telephone… There was no probability of successfully rebutting the respondent being the sender as the respondent himself admitted sending the message.
The above case confirms that electronic signatures for purposes of the ECA can be in the form of any mark, created using any electronic technology. The ECA sets out some other further points which are important to note
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Section 10: “where any law requires a seal to be affixed to a document, the requirement of the law is fulfilled (if the document is in the form of an electronic message) by a digital signature as provided under the DSA”.
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Some transactions and documents are clearly and expressly exempted from the scope of the ECA. These are: (i) powers of attorney; (ii) wills and codicils (i.e. an addition/supplement to a will); (iii) trusts; and (iv) negotiable instruments (i.e. documents guaranteeing payment of a specific sum with the payer named such as promissory notes, demand draft and cheques).For such documents to be valid and enforceable, there might be additional formal requirements under Malaysian law such as notarisation or attestation before a public notary or commissioner of oaths. As such, for these instances, pen might still need to be put to paper and relying solely on electronic messages and signatures would generally not be appropriate.
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