Legality and enforceability of electronic signatures in New Zealand*

The Contract and Commercial Law Act of 2017 regulates electronic signatures in New Zealand. This law replaced the Electronic Transactions Act of 2002, which originally regulated electronic transactions.

An electronic signature is a method used to identify a person and indicate that person’s approval of information, whether in its original form or otherwise, in the form of a document, a signature, a seal, data, text, images, sound, or speech.

New Zealand does not establish different tiers of electronic signatures; an electronic signature could simply be reliable and, therefore, valid or not. However, there are different electronic signature validity requirements for the signatures that are executed and which are to be witnessed.

For both electronic signatures to be executed and to be witnessed, the reliability and appropriateness of the signature is a key to their validity under the law. The New Zealand laws established a separate reliability test for electronic signatures. The electronic signature is presumed valid if it is reliable.

According to the reliability test, the electronic signature is reliable if:

1. The means of creating the electronic signature is linked to the signatory and to no other person.
2. The means of creating the electronic signature were under the control of the signatory and of no other person.
3. Any alteration to the electronic signature made after the time of signing is detectable.
4. If an electronic signature is used to ensure the integrity of the information, any alteration made to that information after the time of signing is detectable.

An electronic signature is valid in New Zealand if it complies with the following criteria:

1. A signature adequately identifies the signatory.
2. A signature adequately indicates the signatory’s approval of the information to which the signature relates.
3. A signature is as reliable as is appropriate, given the purpose and the circumstances of the signature.
4. The signatory has consented to the use of electronic signatures.

The electronic signature to be witnessed is valid in New Zealand if the signature:

1. Complies with the legal requirements for electronic signatures specified above.
2. Adequately identifies the witness.
3. Adequately indicates that the signature or seal has been witnessed.
4. Is as reliable as is appropriate given the the purpose and the circumstances of the witness’s signature.
5. The signatory has consented to the use of the witness’s electronic signature.

First of all, the laws provide that the information should not be denied legal effect solely because it is in electronic form.

Then, the reliability and appropriateness of electronic signatures determine who bears the burden of proof of the electronic signature validity in court. If the signature meets the reliability criteria, it is presumed that the electronic signature is legitimate; therefore, if the signature’s validity is challenged, the challenging party must provide evidence confirming the opposite. On the contrary, if the signature does not meet the reliability criteria, the person who used and relied on that signature must prove that it is reliable and valid.

Yes, a person needs to consent to use, provide, or accept information in an electronic form.

However, that consent may be inferred from a signatory’s conduct or from the form of the information or the means by which the information is communicated. For example, if the information in the electronic form was electronically communicated to the signatory and they electronically signed it without objections, it could be presumed that the signatory consented to the use of an electronic signature.

• Documents and communications issued under the particular laws specified in the Contract and Commercial Law Act of 2017, e.g., referenda and electoral laws, citizenship laws, medicine, fisheries, and games regulations, etc.
• Notices that are required to be given to the public.
• Information that is required by the law to be given in writing.
• Affidavits, statutory declarations, or other documents given on oath or affirmation.
• Powers of attorney or enduring powers of attorney.
• Wills, codicils, or other testamentary instruments.
• Negotiable instruments.
• Bills of lading.
• A warrant or other document that authorizes entry on premises, the search of any person, place, or thing, or the seizure of things.
• Enactments of certain courts, tribunals, and other governmental bodies.
• Information is required with respect to any goods or services by a consumer information standard, a product safety standard, or a service safety standard.

Last updated: September 2024