Are e-signatures legal, admissible, and enforceable in the local jurisdiction?
The use of e-signatures in Ireland is principally governed by the following domestic and EU legislation:
- The Electronic Commerce Act 2000 (the 2000 Act) (which implemented Directive 1999/93/EC into Irish national law (the 1999 Directive); and
- Regulation ((EU) 910/2014) (the eIDAS Regulation) which repealed the 1999 Directive with effect from 1 July 2016 and is directly applicable in Ireland.
Due to the supremacy of EU law, where there is a conflict between the terms of the 2000 Act and eIDAS Regulation, the eIDAS Regulation will take precedence. However, where the 2000 Act and the eIDAS Regulation differ and impose separate (rather than conflicting) requirements, both must be complied with.
The 2000 Act provides that (subject to certain exceptions which are discussed below):
- An electronic contract should not be denied legal effect, validity, or enforceability solely on the grounds that it is wholly or partially in electronic form, or has been concluded wholly or partly by way or an electronic communication (section 19, 2000 Act); and
- In legal proceedings, nothing in the application of the rules of evidence shall apply as to deny the admissibility in evidence of an electronic signature: (i) on the sole ground that the signature is in electronic form, is not an advanced electronic signature, is not based on a qualified certificate or is not based on a qualified certificate issued by an accredited certification service provider, or is not created by a secure signature creation device or (ii) if it is the best evidence that the person or public body adducing it could reasonably be expected to obtain on the grounds that it is not in its original form (section 22, 2000 Act).
The eIDAS Regulation similarly gives legal effect to the use of electronic signatures for the execution of documents.
Under the 2000 Act, each party signing a document must consent to the use of an e-signature. While this consent does not need to be explicit and can be implied or inferred (e.g., from contemporaneous emails), best practice is to obtain express consent between the parties where possible (e.g., by including a consent clause in the relevant document).
Types of Electronic Signatures:
The eIDAS Regulation (which, as noted above, is directly applicable in Ireland) provides for three kinds of e-signatures: (i) simple electronic signatures (SES); (ii) advanced electronic signatures (AES); (iii) qualified electronic signature (QES).
SES means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.
AES means a signature that meets the following requirements:
- it is uniquely linked to the signatory;
- it is capable of identifying the signatory;
- it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under their sole control; and
- it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
QES means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signature.
In addition, it is worth noting that the 2000 Act has not been updated to reflect the three types of signature introduced by the eIDAS Regulation. Rather, the 2000 Act provides for “electronic signatures” and ”advanced electronic signatures”. These types are similar to but not the direct equivalents of the types of e-signatures specified under the eIDAS Regulation.
For certain documents (including those to be witnessed and those under seal), the 2000 Act permits an advanced electronic signature based on qualified certificate (AES/QC). The AES/QC is not the equivalent of an AES or QES under the eIDAS Regulation and instead creates separate distinct requirements. We are not aware of any e-signature provider in the market that can provide an AES/QC for the purposes of the 2000 Act
Notable Case Law:
In George Maloney v Ted O'Connor and Donal Dunne  IEHC 678 it was held that a solicitor typing their name "Ger" at the foot of a note, with authority to bind their client, was a valid electronic signature for the purposes of evidencing a contract for the sale of land by a note or memorandum, as required by the Statute of Frauds (Ireland) 1695.
Are there certain documents that cannot be e-signed?
Section 10 of the 2000 Act provides that the general provisions of the 2000 Act are without prejudice to specific rules governing the creation, execution, amendment, variation, or revocation of certain types of documents, including the following:
- wills, codicils, or any other testamentary instruments to which the Succession Act 1965 applies;
- enduring powers of attorney (but not regular powers of attorney which may be e-signed);
- documents by which interest in real property (including a leasehold interest in such property) may be created, acquired, disposed of, or registered (other than contracts whether or not under seal) for the creation, acquisition, or disposal of such interests;
- affidavits or statutory or sworn declarations; and
- documents required by the rules, practices, or procedures of a court or tribunal.
Accordingly, when signing any of the above documents, the prudent course of action is that ”wet-ink signatures” be used.
In addition, documents required to be executed by an Irish company under the common seal (such as deeds) may not be executed by way of e-signature, as there is currently no electronic means for the affixing of corporate seals in Ireland, so the seals need to be physically affixed to the deed. In practice, the requirement to execute a document under a company's common seal may be circumvented by a company authorizing an individual to sign on its behalf by way of power of attorney (POA). The company's seal does not need to be affixed to the POA.
Finally, according to guidance issued by the Law Society of Ireland, the requirement that signature of certain documents be witnessed under Irish law (e.g., deeds executed by an individual, including an individual acting under POA) may be satisfied in the context of e-signatures as follows:
- the witness is physically present when the signatory applies their e-signature, and the witness then applies their e-signature underneath as witness; or
- the witness is physically present when the signatory applies their e-signature, but does not have their own e-signature, and so prints the e-signed documents and signs as witness using a wet-ink signature.
In the above scenarios, a QES (which as defined in the eIDAS Regulation has the "equivalent legal effect of a handwritten signature") or a wet-ink signature are the preferred options for documents that must be witnessed. Whichever form of signature is used, it is currently best practice that a witness be physically present at the signing, rather than relying on video conferencing for the purposes of the witnessing.
Does local regulation govern the use of digital IDs / certificates for e-signatures?
The eIDAS Regulation, which is directly applicable in Ireland, provides for the general legal framework for qualified trust services. Among other things, the eIDAS Regulation governs the application procedure for trust service providers to obtain the status of a qualified trust service provider (Art. 22) and the requirements applicable to the same (Art. 24).
In addition, S.I. No. 233/2010 – the Electronic Commerce (Certification Service Providers Supervision Scheme) Regulations 2010 (the 2010 Regulations) created a scheme for the supervision of certification service providers (CSPs)/trust service providers (TSPs) established in Ireland.
The 2010 Regulations require that TSPs/CSPs who issue qualified certificates to the public notify the Minister for Environment, Climate, and Communications when they commence providing certain e-commerce sector services. They also require that TSPs/CSPs provide evidence annually that the qualified certificates which they issue to the public meet the requirements of Annex I of the schedule of the 2000 Act. A TSP/CSP must itself meet the requirements of Annex II of the eIDAS Regulation/Annex II of the 2000 Act.
As an aside, we note that the Irish Government recently established a digital ID called “MyGovID”, which provides users with a secure online identity to access Irish government services. The MyGovID is currently used solely for the purpose accessing Irish government services online and is not used in the context of electronic contracts or e-signatures.
If yes to the above, does local law provide certification bodies / trust services that users of e-signatures should be aware of?
The Department of the Environment, Climate, and Communications (DECC) supervises CSPs/TSPs established in Ireland who issue qualified certificates and maintains Ireland's list of trusted services. Further information can be found here.
*DISCLAIMER: The information contained in this guide is for information purposes only, provided as is as of the date of publication and should not be relied upon as legal advice or to determine how the law applies to your business or organization. It is recommended that you seek guidance from your legal counsel with regard to law applying specifically to your business or organization and how to ensure compliance. OneSpan does not accept liability for the contents of these materials or for third parties materials.
Last updated: November 2021