Ensuring Electronic Signature Legality for Physical Exam Consent

How to eSign a document: electronic signature legality for Physical Exam Consent

hello and welcome to today's webinar electronic signatures thank you for taking time out of your day and joining us this morning my name is Cindy and I will be the co-host our presenter for today is George Finland thank you very much and over to George thanks Cindy thanks for the introduction good morning everyone from an icy icy Johannesburg I don't know where you all are that's the modern technology of today but it certainly is bitterly cold here and if you are here you probably sharing that with me first and foremost thank you for the privilege of your time and thank you for showing an interest in electronic signatures and this introductory talk so let's kick off so latest Nexus which is the company that I work for there's a strap line called advancing the rule of law and it's a proud banner that we carry globally and around the world it's a concept that unifies our company across the globe and is passionately supported by the people of LexisNexis our efforts include supporting corporate citizenship initiatives that strengthen civil society and the rule of law across the globe but let's get down to what we're here to chat about today and that is really and the agenda let's have a look we're going to look at the history of signatures and we'll talk a little bit about that something we're all familiar with and I'm certainly passionate about we look at signatures today why of course electronic signatures and then we're going to look at the legislative environment the signature facilitation compiling the evidence and then the uses and curve at 19 and then a Q&A at the end but anyway let's first ask ourselves why do we sign things I always ask that question you know why do we sign things and there's one word that comes up for me and that's the golden thread word that's going for me that carries through this talk and through the concept of signing and the concept of electronic signatures and that's the word certainty certainty for me embodies the whole principle behind it because what it does is it gives you the feeling of confidence that something is true based on reliable information that is the the certainty behind signing that is why we sign things and historically if we had to ask ourselves why is this really relevant well if you think of it back in the day the whether it was the Sumerians using cuneiform at the time to document what was happening in their lives or hieroglyphics even or if you look at Roman times we had Julius Caesar for instance Julius Caesar who one of the Caesars would wear a seal ring on his on his pinky it should be emblazoned with the crest of of the Roman Empire at the time whether it be spqr or whatever the case might be and what would he do that seal ring or signet ring identifies him and gives him a certain identity and what does he do with that well of course he dips that ring into the molten wax and then affixes it to a document so we all see that in the form of an arterial seal I don't do that much anymore but a beautiful notarial seal what is that it is the form of identification and what it also does is it signifies the intention to do something and then what it does is it records the events so you've got three primaries of poorness stones back in Roman times already and that's the identification of the individual the intention to do something argument's sake is just conquered Gaul and now he's recording that in the document so it's got the intention to record it and then you have the recording of the event which is the document which is affixed by his beautiful seal and over time that of course has changed so only Julius Caesar argument's sake had this beautiful seal ring but over time it has changed in the form of let's say quills and ink now you have the Pope or the aristocracy that would be writing on beautiful parchment paper with quill and ink and they would also in the state but the intention remains and remains the same is to create the form of certainty certainty based on the three things one is the identification of an individual the intention to do something and a recorder of the event those are those three things and that's as I said that certainty and those three things is the golden thread for me that runs through the whole principle behind all of this and of course from the calls in ink we had Gutenberg's printing press with a proliferation of of printing works made paper and pens and the documentation accessible really to the man in the street which of course brought it right down to well here's a lovely image of a glorious fountain pen but of course and ballpoint pens and the everydayness of it has become commonplace so when it moves from the pin onwards where does it go because the certainty must still be there so if you think of it the only thing that is certain after all is change you know we've moved from letters to email and if you cast your mind back the older ones in the room whoever you may be and wherever you may be the reluctance to move over to email and thinking that it was thus with unique a piece of of of of take but now email is commonplace that all art of letter writing is completely disappeared and they be moved from cache to card I mean the whole thought of moving from a cache to society at least from a cache to a cashless society was a foreign concept yet today it is actually very much part of our lives then we had the concept of the old landline telephone and now we have VoIP or voice over internet protocols we've got our telephones so all these changes you've got these changes from all these things and I think this very thing that we're doing right at this very moment is the change from the boardroom to zoom Here I am sitting in Johannesburg speaking to all of you and I've got no idea where you are but we're all connected in real time and so hand written or wet ink signatures have also moved into the electronic age and that is where we are and that is what we're talking about today is electronic signatures so I spoke about certainty and I spoke about those three things which is the identification and the recordal of the event and the intent so that's really important because the fundamentals of signatures remain exactly the same the certainty fundamentals is what I call them there's actually no real modern-day set of fundamentals bear in mind however that people can and will always commit fraud and bear in mind also however that people will go back on their word and also that they won't carry out your wishes or their own intentions necessarily so no matter what you do from a technology point of view those inherent human traits will always be with us sadly as it is but what we can do is we can reduce those as much as possible by entrenching this new technology so what are the four kinds of certainty fundamentals that we sit with well they are identity non-repudiation so what is non-repudiation refer to in this context it means the non changing of the document that and and alterable nassif there is such a word of of the document so that's the non-repudiation we're talking about proof and we're talking about confidence so let's have a look at those so if an electronic signatures are so far better than achieving this they're near forementioned so we're saying that electronic signatures are better at achieving these certainty fundamentals than any of the previous that was the Romans or the fountain pen order or the cooling ink so what the electronic process does is it makes these things better and how does it do that well how are they better so electronic signatures are a legal alternative under South African law and will say of advanced electronic signatures but it will look a little bit more of those a little bit later but let's start off at the top one name which is the identity so how do you know someone is who they claim to be so that's the most common last question on the digital signature platform that we have and you do distribute at signing sessions and send documents out the most common question I I get asked is how do we know that the person on the other side who's signing the document is who they are well if you ask yourself with red ink signatures how do you identify someone so but the red ink signature if years down the track you think of wills that are in dispute for instance you get a handwriting expert and that handwriting expert must then come and analyze the signature how hard that Iowa's dotted and the light ups and the dark downs and all all the like and that is what used to be done but now with the electronic space we've got a different way that you can do handwritten authentication so for instance all of you probably have seen these digital signing pads we call them a welcome pad but a rare compared is really just a manufacturer of the pad but we see them in a SARS office or you might see them in Edgar's or at the post office and we use them on our platform as well and those of you that might sign mortgage bond documents on behalf of financial institutions that are using the digital signing process of on a rack compared we'll see that you do in your plant signs on that on that compared what happens is the details of that signing is recorded it's known as the orthography of the mark and that is recorded in the software of that signing pad so again the idea of having to get a handwriting expert is really no longer needed because as I said the orthography of the mark is embedded in the in the in the software so the other thing that you can do the way of either confirming the identity is electronic authentication so how would you do that so as an example if I had to send a document out for someone to sign how will i will think to get them electronically well you've got a few things well one they need access to us to a system so the system need all of you that are listening to me now access your computer how did you access your computer well probably control-alt-delete and then you put in a password that only you knew and that was one form of authentication already if I had to have sent you a document to open I might ask you to open that by entering your identity number or maybe a one-time bin I often use the example and for me it's a classic one of coming back to those initial fundamentals of identity intention and recordal so if you ask yourself if you go and draw a hundred ran at the ATM and you stand in front of the ATM what do you need well when you need a card so you need an item with which to identify yourself then you insert the card into the Machine and it asks you for the one time pin which is only something that you know you enter the one Tampin you draw the hundred grand so that was your intention to draw the will at the hundred grand and where is the recorder of the event well it's on the little slip or on your bank statement it says at a specific time date and place you won identified yourself by putting in the pin and - you had the intention of drawing with drawing a hundred grand and three the event is recorded so that is an electronic way of identifying a person and then recording that event furthermore there are other ways of of identification and that could be biometric authentication we've seen that in the form of modern-day iris scans maybe at airports and the like and of course the thumbprint biometric authentication so in any electronic signature platform that could be a form of identification that can be used as well a fourth one also in the identity fundamentals is cryptographic authentication that is the form of private and public key infrastructures and those of you that work with digital guarantees for instance in the in the mortgage bond space will be familiar with this cryptographic authentication for instance those guarantees are issued and the person issuing that has to be in position of a digital certificate which has properly identified them so that they can sign that their document right so let's look at the next one which is the non-repudiation and that was what I would just call no tampering so the important part about these electronic signatures and the electronic documents is you can lock the document down if you've locked the document down nobody can tamper with it so that is one of the certainty fundamentals that is absolutely crucial so and then so not only do you have proper identification but you have non repudiation of the document and similar to my withdrawing of the money scenario you were a chordal of every step of the signing session so what happens with the electronic signature platforms is the person is properly identified and then the whole signature process the time date and place of signing is properly recorded and that of course gives you the proof and the proof is in the form of an audit trail so any proper digital signature platform will keep an audit trail of everything that has happened when the person signed how they were identified and the time date and place of signing and when you've done all of this it obviously gives you the confidence that your document will then stand up in court that your signatures will stand up against any form of scrutiny so these are the certain certainty fundamentals that I talked about okay I'm going to move on to have a little bit of a look at the laws let's look at the laws because the question is now thinking that opening I don't if any of you saw that the little video clip that I made prior to this webinar and it started off with how do you do and then it asks a whole lot of questions about how do you and and one of the key questions was how do you know that your document will stand up in court and how do you know that your document is compliant well you've got to look at the numbers so let's have a look what is applicable we've got three six really nations the one is the common law the second one is the ECT Act and the third one is legislation applicable to a specific transaction so I want to stand still just a little bit with the common law there is an enormous enormous amount I think the proper word is a plethora of case law with respect to signatures and the whole question of the making of a mark and the definition of signatures in the common law goes back into the previous century the legal practitioners among you will also remember in the law of evidence it's one of those beautiful scenarios that is also deemed to be proper identification and a signature where the witness symbolically touches the pin of the magistrate who then makes a mark on the document you will recall that from your law of evidence classes I can just imagine that scenario but that to me is a lovely picture but that's the common law of lies and of course the ECG Act so that is the electronic communications and transactions Act promulgated in 2002 I think it was early August which is quite a long time ago but the ECT Act confirms the common law and the ECT Act importantly is also technology neutral so that is the the law that you've got to look at when you're using an electronic signature platform and bear that in mind if you're in the jurisdictions of South Africa ask yourself which platform you're using and ask yourself if it is ECT compliant very very important and then the third line that I have there is the legislation applicable to a specific transaction I'm going to touch on that a little bit later but also very important when you're looking at any document or contract or or whatever it might be which legislation is applicable to that document and you couldn't read all of them together the common law the ECT Act and the legislation applicable to a specific transaction you can't read them separate from one another okay so let's look at what the ECT Act says the ECT Act since they're basically the signatures of today in terms of the ECT Act well that talks about consent and that is where a party agrees without necessarily signing the ECT Act says that consent is valid in electronic form if the person's intent can be inferred so that's pretty straightforward that's the handshake or if you just signing anything by a tab at the bottom of your email and the same can be said for electronic signatures in terms of the ECT Act it's a very very wide definition in essence ing to the Act anything that you intend to use as a signature it says is a signature this means that a check box your name at the bottom of an email digital signature cetera are all forms of electronic signatures you think for instance things like I think they call it a click rap agreement so whenever you are doing something online and there's a little box there with a little tick box that you click and accept so in that click rap agreement that is your form of electronic signature so a very very broad definition that's given here by the ECT Act thirdly we've got the concept and this is what I meant a little bit earlier of an advanced electronic signature now they aren't advanced for any technical reason but there are advanced in the sense that there are digital signatures that are made with a digital certificate which identifies the specific person so there's quite a rigorous process that person needs to be identified properly and then that's it that digital signature gets issued to them by an entity that is approved by the department of communications so in this case we only have to in South Africa at the moment the one is the South African post office and other one is a company called fraud trust which is between a minutes drive from where I'm sitting at the moment and they are authorized to issue the advanced electronic signatures and what are they able to be used for well again in the previous slide I said look at the legislation so what it says there is that if a piece of legislation requires a signature then only an advanced electronic signature will suffice so if you're thinking of signing a bread clause for your title deed or for your power of attorney then an only and advanced electronic signature will suffice if you read this together with argument's sake the Commissioner of Earth's act or the justices of the peace Act only an advanced electronic signature will suffice we at LexisNexis for instance we resell advanced electronic signatures from both those organizations those of you who dude transfers for instance and are familiar with the electronic rates certificates ticket issued those can sign by way of an adviser electronic signature by the relevant municipality and those are ones that we that we issue challenges that lie ahead of us of course are the tasting of these advanced electronic signatures by the courts and the or shall I say even just the acceptability of it so the challenges out there to all of you to be the first ones to sign affidavits using advanced electronic signatures my interpretation just mine is that it they there's nothing legally prohibitive in doing that the question is that whether they will be accepted by the courts but those are nice nice challenges that that we have importantly in the ECT Act is there's a schedule if my memory serves me it scheduled to and scheduled to prefers to certain bits of legislation that are excluded from the ECT Act where we'd signatures are always allowed of it pardon me we read signatures are compulsory classic examples of these the alienation of land act and Bills of exchange and Will's and funny enough in my interpretation I think the document that should be signed by way of an electronic signature should be a will can you imagine how perfect the world would be if the test a tourist estate tricks is properly identified one two if the intention is is there and three if the recordal of the event time date and place of signing is properly recorded if you if only that could be applicable to rules I'm sure all those family disputes and all that litigation revolving rules should be diminished greatly similarly the question of DS of sale for fixed property and those long-term leases but more importantly the deeds of sale those of you in the virtual room that willing that are in the property industry maybe the estate agents or the real estate people the temptation is great to sign a deed of sale using an electronic signature platform the logic is perfect because your identification your record will etc is all there but you may not it's prohibited so it's excluded from the workings of the ECT act and that's a very crucial thing that one must remember and there's some other bits as well of course and that is the the surety ships and a variety of other pieces of legislation but let's have a look at some other acts in the legislative environment so we have we have in our research looked at various pieces of legislation here is a list of of 10 and in our interpretation legs as a digital signature platform can be used for documents regulated by these acts so we're comfortable with that but of course you've got to read and research every single one of them properly so importantly however and as I can cannot emphasize strongly enough is have a look at the exclusions I've mentioned now the alienation of land act of mentioned wills look at the credit agreements you all of you know when you sign those those mortgage loans they need to be signed in the presence and if they're not signed in the presence of the the other party in this case probably an attorney I need to be signed by an advanced electronic signature so bear that in mind a surety ships you've got that piece of legislation that is the general law Amendment Act which also requires a signature so a surety should need would need to be signed by way of an advanced electronic signature so it's very important that you bear all of those in mind to you so usually at this stage what I do is I do a demonstration I do a live demonstration but in a room with as many people in it as they currently are the practicality of that is not really doable but I'm going to do this way of an illustration clearly said and that is what I call just why electronic signatures and there's any one answer to it and that is because of the ease I want to sketch an example or a scenario here I am I'm George I'm sitting in Johannesburg there you all are and I don't know who you all are or where you are at least I pathetically say you're all directors of a company I'm the company secretary you're all directors of the company and you need all need to sign a resolution so what I'm going to do I use a digital signing platform in my case I'm using lexus sign which is the LexisNexis platform and I draft a one-pager resolution and I need to send it to all of you and what I can do now is I've drafted you're all sitting at your computers wherever you are you're all sitting at your computers and I send it out and really what it does immediately says I don't have to wait for the document to be returned I will have the document back on my desk instantaneously at the moment you sign it so all of you will receive an email as we speak in the email will be a link you will click that link it will open the document and the moment you sign it I will receive it and the benefits of that or really mass as well so I don't have to because I don't have to wait for the document to be returned furthermore your service is a practitioner or whatever the nature of your business is is far far better than it used to be you aren't wasting any time they know couriers they know there's no postage and I have this little rhyme and I always say and they four things print sign scan and email so that's what we're all kind of used to is you send off a document someone on the other side prints and science and scans and emails but by doing those four things you fall into every single trap of the certainty one you don't identify the person properly you don't authenticate him in any way whatsoever that is and the document gets printed so all your legibility goes up the creek so you have all these problems whereas now you don't waste any time when you've got no additional cost I mentioned earlier one of the fundamentals is the non-repudiation which is the non altering of the document if I send this resolution out to all of you all of you sign the document and I get it back what I know is that the document has not been altered none of you can print it make him make a change scan it and then email it back to me it's a major benefit well the sign anywhere anytime it's a little bit like a zoo meeting is that you can have a board meeting anywhere any time which is basically what we're doing now firstly well it's the customer experience you can imagine if all of you as I said were members of my board or trustees of my trust the experience that you can sign anything anywhere anytime on any device is a major benefit preventing fraud well obviously I said earlier you know you can never prevent fraud entirely people will always go back on their word and their intentions will might always change but if you can ensure that the document remains tamper proof that is we're a major major benefit lies so that's really why you use electronic signatures is for all these ilysm the salient features of using electronic signatures but let's just look if I send this document out to you we have discussed this you know briefly but if I send this document out to you and how am I going to facilitate the signature so let's say there is my colleague who's sitting in in George human sake how am I going to identify him so I send the document well one that person has to be at a computer and then you'd have access to that computer in which they're going to receive an email then they need to log into that system they need to capture an identity number that would be my first port of call is that they need to put in an ID number in order to access the document or I can add what is known as multi-factor authentication and we're all familiar with multi-factor authentication if you ask yourself if you're doing EFT electronic funds transfer you have multi-factor authentication in the form of one-time pins that are sent to you that you've got to insert before the transaction takes place the same when you're making a credit card payment they send you a one-time pin what is the one-time pin do well you have to have your cell phone with you you have to have access to your cell phone yet to be able to read the the SMS with the one-time thing would you then insert on the platform this works in exactly the same way it's part of my identification process I ask you to insert the one type and so that I can be sure that it is you right so secondly the visible representation of intense oh that's recorded in the audit trail I mentioned earlier about the whack impaired recording the orthography of the mark so that's the one thing but what the electronic signature platforms do are certainly does is when you sign the document this resolution that I've sent out to all of you behind your signature is a watermark and this watermark records the time date and place of signing and that is an absolutely crucial part of the record of the event right the last line on this one is the question of the recording of the or the keeping of the document the platform is in our platform stores the document for you but of course you can store that PDF document wherever in whichever storage system you have on your system and the key thing is that you have proof that that document is unaltered and it has the watermarks behind each and every signature and what does this give you so this comes back to my keyword that I used right in the beginning and that is the word certainty why do you want the certainty you know we all sign rules and contracts and things and we never ever look at them until things go wrong so that is the key part is if you're using an electronic signature platform where does the certainty lie for when things go wrong and the ECT Act makes specific provision for that I think if my memory serves me a section 15 which deals with what we refer to as the evidentiary wait so what is the evidentiary weight of the work that you've done so if you for instance are just emailing or SMSing yes the contractual validity is there but is the evidentiary weight there that is why you use you must use a proper electronic signature platform because that compiles the evidence so it keeps a record of the evidence for when you need it one day so that's what I call will refer to as compiling the evidence so firstly you have the reliability in document generation document integrity and identification of the originator so you've got a certificate identifying the platform and let's say in our case it's the lake's a sign platform which is sealed with a digital signature so that's point one of your evidentiary rate your reliability in the document viewing so that was how you as the signer of my resolution viewed the document in the original PDF format and of course that that PDF document is an optimal it too is sealed with a digital certificate and then you have the reliability in storage of the document so have the digital signature integrity and you can be restored in a records management storage of your of your choice but the important part is you've got the long-term verification sealed by the digital signature of in our case it would be your trust so very very importantly for me is to be able to say to you in conclusion that electronic signatures are a legal alternative to handwritten signatures in our law secondly they are more secure and reliable than pen and ink the purpose is the same but the fundamentals are entrenched and are far better than the pen and ink versions that we traditionally used and of course in today's world they are now more relevant than ever so one of the things that's just like zoom has catapulted us all that when I mentioned earlier into this virtual world of meetings by way of computer so - this covert 19 situation every ruling has catapulted the relevance of electronic signatures into all of our worlds just to give you an example for instance certain in the last few months for instance we have had a list of needs call it needs and uses for electronic signatures purely in the code of 19 kind of space visitor evaluation forms permits for essential workers applications for restructuring decks with less example the financial institutions that are sending our documents for the restructuring of dates but they don't people don't want to go to the branches people that want to go to attorneys or people are the firm's are still shut they can do all of these by using electronic signatures and the fundamentals of obtaining certainty are not just intact they are better than a handwritten scenario so these is just a list of examples that we've used and literally in the last few months using electronic signatures in the curve at 19 trauma space that we're all living in so to close off before we can lead to questions and so on I just want to say to you this is the landing page of Lexus sign which is the electronic signature platform of LexisNexis dot X is sine dot coz a that takes you to that page on that page are the processes of how to facilitate the signature how to design the document how to read the audit trail of a signing process and how to store the document that is all there and you're most welcome as well to try them out thank you very much for your time and as I said right in the beginning thanks for the privilege of your time all the best [Music] you