Guide to Advanced Electronic Signatures

//Guide to Advanced Electronic Signatures

Advanced electronic signatures are those electronic signatures which have ‘passed a test’ or been accredited. Think of this as a type of “stamp of approval”. Without it, certain electronic signatures will simply not be considered good enough to be used to perform certain acts as required by law. In that narrow sense, they won’t be considered “legal”. The law recognises all electronic signatures, while at the same time incorporating provisions for particularly reliable electronic signatures – those which have been “accredited” (and can be called “advanced electronic signatures”). If you do not have accreditation you will still be able to provide legal electronic signatures or digital certificates, but not advanced electronic signatures.

An Advanced Electronic Signature in the European Union

Advanced electronic signatures in the European Union are under different laws. There, EU Regulation No 910/2014 (eIDAS-regulation) creates the requirements that electronic signatures have to comply with before they can become advanced electronic signatures. The idea is however still the same as that of the ECT Act: the electronic signature has to pass a test or meet requirements before it can become an advanced one.

Accreditation Authority

In June 2007, the Minister of Communications published Accreditation Regulations in terms of the Electronic Communications and Transactions Act, 25 of 2002 (ECT Act). The ECT Act empowers an Accreditation Authority to assess and grant applications to have certain electronic signatures accredited as advanced electronic signatures (AeS – not to be confused with the same abbreviation, but which stands for Advanced Encryption Standard instead).

Advanced Electronic Signatures

Parties to transactions generally choose to sign their documents. This gives them legal certainty. Another reason for parties signing their documents is because the law requires them to do so, otherwise those documents will not be legally valid.

The ECT Act recognised a new method of “signature”, thus, broadening the choice of how one may “sign” from the traditional pen and ink manner to (ordinary) electronic signatures (e.g. a scanned image of a handwritten signature or a so-called digital signature) and  “mouse-click-on-icon” signatures on a web page.

Where a law specifically requires a signature before a document or action will be considered legally valid, but does not specify the signature which parties must use, the ECT Act created the concept of advanced electronic signatures. One such example of where a law specifically requires a signature is in the Copyright Act. That Act requires that assignments of copyright in any work be written and signed, but does not stipulate what signature parties must use.

Actions you can take:

How to make electronic signatures advanced

An authentication service provider (ASP) can apply to have an electronic signature accredited by the Accreditation Authority. Accreditation entails:

  1. submitting the necessary documentation and information specified in the Accreditation Authority Regulations to the Accreditation Authority,
  2. the Accreditation Authority processing the application, and
  3. granting accreditation.

During the processing phase, the Accreditation Authority can inspect and evaluate the electronic signature technology and its associated processes. If the Accreditation Authority is satisfied that the electronic signature complies with its requirements and the very specific accreditation requirements laid down in the ECT Act (section 38(1) in particular), the Accreditation Authority will accredit the electronic signature. Only once the AA has issued a certificate of accreditation, can the ASP call its electronic signature product an AES. A non-accredited authentication product or service cannot be called an “advanced electronic signature” and to do so would not only be misleading, but also be an offence under section 37(3) of the ECT Act and be subject to a fine or imprisonment for a maximum period of 1 year.