Whilst we know what a digital signature is, there has been little guidance of what is an "electronic signature" (as used in section 10 of the Electronic Transactions Act (Cth) ).
The English High Court considered the issue in Metha v J Pereira Fernandes SA [2006] EWHC 813 (Ch) (07 April 2006).
On 20th February 2005, Mr Mehta asked a member of his staff to send an e mail to JPF’s solicitors in the following terms:
"… I would be grateful if you could kindly consider the following. If the hearing of the Petition can be adjourned for aperiod of 7 days subject to the following:
(a) A Personal Guarantee to be given in the amount of £25,000 in favour of your client –together with a list of my personal assets provided to you by my solicitor
(b) A repayment schedule to be redrawn over a period of six months with a payment of £5000.00 drawnfrom my personal funds to be made before the adjourned hearing.
I am also prepared to give a company undertaking not to sell market or dispose of any company assets without prior consent from your client pending the signing of the Personal Guarantee … "
The e mail was not signed by Mr Mehta but is described in the header as having come from Nelmehta@,aol.com. This e mail address appears on other e mails sent to JPF’s solicitors by Mr Mehta, which have been signed by him.
The issue was whether that email was a binding personal guarantee. Guarantees are only binding if they are signed by the guarantor.
Judge Pelling decided it was not "signed":
"The email referred to in Paragraph 3 above is not signed by anyone in a conventional sense. Mr Mehta’s name or initials do not appear at the end of the email or, indeed, anywhere else in the
body of the email. Inevitably, therefore, JPF must contend that the presence of the email address at the top of the email constitutes a signature…
As well know to anyone who uses email on a regular
basis, What is relied upon is not inserted by the sender of the email
in any active sense. It is inserted automatically. My knowledge of the
technicalities of email is not sufficiently detailed to enable me to
know whether it is inserted by the ISP with whom the sender or the
recipient has his email account. However, I accept Mr Aslett’s
submission that as a matter of obvious inference, if it is inserted by
the latter it can only be from information supplied by the former. Mr
Mehta suggested that the address was inserted by his employee. I do not
see how this could be so and certainly Mr Mehta was not able to give me
a coherent explanation of how that might be so. It is possible that Mr
Metha’s employee was authorised to use Mr Metha;s email account
remotely but, even if that is so, I do not see how that can impact on
any of the issues I have to resolve since it is not in dispute that the
email was sent on the instructions of Mr Metha and the method by which
the sender address came to be inserted would not be affected even if
that was the position…
What is relied upon is an e mail address. It is the e
mail equivalent of a fax or telex number. It is well known that the
recipient of a fax will usually receive a copy that has the name and/or
number of the sender automatically printed at the top together with a
transmission time. Can it sensibly be suggested that the automatically
generated name and fax number of the sender of a fax on a faxed
document that is otherwise a Section 4 note or
memorandum would constitute a signature for these purposes? If Mr
Aslett is right then the answer depends solely upon whether the sender
(or the sender’s principal where the sender was an agent) knew that the
number or address would appear on the recipient’s copy.
I have no doubt that if a party creates
and sends an electronically created document then he will be treated as
having signed it to the same extent that he would in law be treated as
having signed a hard copy of the same document. The fact that the
document is created electronically as opposed to as a hard copy can
make no difference. However, that is not the issue in this case. Here
the issue is whether the automatic insertion of a person’s e mail
address after the document has been transmitted by either the sending
and/or receiving ISP constitutes a signature for the purposes of Section 4.
In my judgment the inclusion of an e
mail address in such circumstances is a clear example of the inclusion
of a name which is incidental in the sense identified by Lord Westbury
in the absence of evidence of a contrary intention. Its appearance
divorced from the main body of the text of the message emphasises this
to be so. Absent evidence to the contrary, in my view it is not
possible to hold that the automatic insertion of an e mail address is,
to use Cave J’s language, "… intended for a signature… ".
To conclude that the automatic insertion of an e mail address in the
circumstances I have described constituted a signature for the purposes
of Section 4 would I think undermine or potentially
undermine what I understand to be the Act’s purpose, would be contrary
to the underlying principle to be derived from the cases to which I
have referred and would have widespread and wholly unintended legal and
commercial effects. In those circumstances, I conclude that the e mail
referred to in Paragraph 3 above did not bear a signature sufficient to satisfy the requirements of Section 4.
