Electronic signatures (Hong Kong law)
This article is based on the law of Hong Kong. It was last
updated March 2005. AUK
version is also available.
Introduction
When considering the topic of electronic signatures there are
two frequently asked questions:
- What are electronic signatures?
- Are electronic signatures enforceable?
This guide will answer both of these questions and look at the
impact of the Electronic Transactions Ordinance.
What is an electronic signature?
There are a number of legal definitions of an electronic
signature. The Electronic Transactions Ordinance (
ETO
)
contains a definition which has been drafted so as to be
technologically neutral. The definition does not favour a
particular form of electronic signature but looks at the function
to be performed by and the attributes of the electronic
signature.
The definition is cast as follows:
"'Electronic signature' means any letters, characters, numbers
or other symbols in digital form attached to or logically
associated with an electronic record, and executed or adopted for
the purpose of authenticating or approving the electronic
record."
The
ETO
provides that electronic records (which
would include electronic signatures) will be admissible in
evidence. The Evidence Ordinance has the effect of requiring that
the courts will determine the weight that should be given to such
signatures.
Digital signatures
The Hong Kong legislation has been designed to provide special
treatment to electronic signatures which are digital signatures.
However, preferential treatment is reserved for digital signatures
covered by a "recognised certificate" (essentially a certificate
issued by a certification authority (
CA
) recognised
under the regime established by the
ETO
).
Digital signatures are electronic signatures signed using
public/private encryption keys. Such systems are now quite widely
available as are the accompanying "certificates", generated to
authenticate the provenance and usage of particular digital
signatures.
In a well intended attempt to tightly control the issuance and
recognition of certificates issued by
CA
s used in Hong
Kong, the
ETO
grants evidentiary advantages in the
Hong Kong courts only to digital signatures covered by certificates
issued by a
CA
recognised under the
ETO
.
These benefits in truth consist merely of a legal presumption that
what is contained in the certificate is correct. This would at
least technically place the holder of a recognised certificate in a
better position than the holder of an unrecognised certificate.
This is because a person wishing to uphold an unrecognised
certificate in court might be forced to prove the correct operation
of the certificate to the Court. This benefit would seem, however,
to be either illusory or not understood by those relying on digital
certificates. Even were a litigant facing a claim involving use of
a digital certificate to be bloody-minded enough to insist that his
opponent proved that the certificate was operating correctly, it is
likely that the risks of a costs award against him (following
receipt of a 'notice to admit' the authenticity of the certificate)
would make him accept the proper operation of the certificate.
Although the
ETO
established an incumbent
recognised
CA
(Hong Kong Post) and a small number of
other
CA
s have become recognised pursuant to the
ETO
, there has not been a great public demand for
recognised certificates compared to unrecognised ones. Overseas
providers of
CA
services have not sought recognition
under the
ETO
. The processes required for a
CA
to obtain and maintain recognition are onerous.
The recognition scheme has been limited essentially to use
within the Hong Kong Government's Electronic Service Delivery
(
ESD
) e-government scheme. Time will tell whether this
particular method of certification will grow in popularity.
The Government is undergoing a massive programme to replace the
existing 'old economy' identity cards with smart
ID
cards. The new smart cards carry an optional (and free to use)
digital certificate.
Any questions? Please contact peter.bullock@out-law.com or
by telephone on (852) 2521 5621 or one of our other contacts.
