On Wednesday 20 June 2007 the Minister of Communications published the Accreditation Regulations in terms of section 41, read with section 94 of the Electronic Communications and Transactions Act, 25 of 2002 (ECT Act). The Accreditation Authority (AA) is responsible for assessing and granting applications to have certain electronic signatures accredited as “advanced” electronic signatures (AeS – not to be confused with the same abbreviation which stands for Advanced Encryption Standard).
In order to understand what an AeS is and why we have it, it is necessary firstly to understand that transactions can roughly be divided into 2 categories:
- where documents are signed out of choice in order to give the parties some legal certainty and
- where documents are signed because the law says they will not be regarded as having legal force unless they are signed.
As a general proposition, most transactions fall into the first category as a signature is not often required by South African law in order to give legal validity to a transaction. It is the parties to the transaction who often themselves decide to sign a document for a variety of different reasons which are probably all in one way or another related to wanting certainty of one kind or another.
With the advent of the ECT Act, a new method of “signature” was recognized broadening the choice of how one may “sign” from 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.
The importance of this very clearly was that from now on, our law would recognize that a signature could be executed in a perfectly legal manner by means other than “pen and ink”.
There are, however, certain South African statutes which specifically require a signature before a document or action will be considered legally valid – i.e. the second category referred to in the opening paragraph. In order to distinguish signatures which a statute requires, where such signature is to be appended electronically, the ECT Act created the concept of an “advanced” electronic signature.
When it accordingly is required by statute that a document be signed, the ECT Act says that it is not going to be good enough to simply do so with an (ordinary) electronic signature, but that this can only be done with a more ‘special’ advanced electronic signature. An example of where statute specifically requires a signature can be found in the Copyright Act.
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This is achieved, simply put, by an authentication service provider (ASP) applying to have that electronic signature accredited by the AA. Accreditation entails (i) making application and submitting the necessary documentation and information specified in the draft AA Regulations to the AA, (ii) the AA processing the application and (iii) granting accreditation.
During the processing phase, the AA can inspect and evaluate the electronic signature technology and its associated processes. If the AA 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 AA will accredit the electronic signature. Only once the AA has issued a “certificate of accreditation”, can the ASP call its electronic signature product an “advanced electronic signature”. 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.
Put differently the term “advanced electronic signature” is the label given to those electronic signatures which have ‘passed the test’. Think of this as a type of “SABS 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 Statute (“law”). In that narrow sense, they won’t be considered to be “legal”.
To summarise: The ECT Act therefore 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”). Those who do not apply for accreditation will still be able to provide legal electronic signatures or digital certificates in South Africa.