Electronic Signature Vs. Digital Signature Requirements in Hong Kong
Should You Use an Electronic Signature and Digital Signature in Hong Kong? What are the requirements? Your Questions Answered
Electronic signatures and digital signatures are among the multiple signature forms recognised in Hong Kong as part of the Electronic Transactions Ordinance Act (ETO).
What Is The ETO?
Hong Kong’s ETO recognises some of the multiple signature forms used by private sector businesses. In all official electronic communication with the government, the ETO retains the digital signature requirements.
This means the ETO (Cap. 553) recognises that electronic records have a legal effect in Hong Kong for law purposes. Therefore, the ETO oversees the regulation of these signatures, including electronic and digital signatures.
What Is an E-Signature?
E-signatures are short for “electronic signatures”. These can include numbers, letters, characters and even symbols attached to documents in digital format. For example, electronic and digital signatures. They can be used to prove a record or document’s authenticity.
The person who signs the document would generate this electronic signature applicable to transactions where all parties agree to use this signature. This includes non-governmental entities. If transacting with the government, the signatory may only use certified digital signatures. Certifications can be issued by a certifying authority.
What’s the Difference Between Electronic and Digital Signature?
A digital signature is like an electronic fingerprint. Except instead of an actual fingerprint, it’s in a coded message securely associated with you as the person who signed the document. These signature forms are an accepted standard format known as Public Key Infrastructure (PKI). Digital signatures are the highest security level that is universally accepted.
Digital signatures are a form of technology implementation that encompasses the broader e-signature scope. This means they are included as part of the e-signature classification. They still enable you to sign and authenticate documents. The only differences would be in the technical implementation, legal and geographical acceptance and purpose. Some countries might prefer other forms of e-signature authentication.
Just like your handwritten signature, digital signatures are unique to you. Certain digital signature solution providers like DocuSign for example, have a PKI protocol they follow. This makes it unique to each signer.
Hong Kong Law and E-Signatures Limitations
Electronic and digital signatures fall under the e-signatures category. Thus, they are recognised by the Hong Kong law and regulated by the ETO. E-signatures are recognised for most contracts under Hong Kong law.
There are, however, exceptions to the ETO. Certain contracts under Schedule 1 of the ETO (Cap. 553) for example, requires handwritten signature for certain documents. For example, any documents or deed that relate to land charges must have a handwritten signature. These documents cannot be stored electronically.
The Schedule 1 of the ETO are as follows:
- The creation, execution, variation, revocation, revival or rectification of a will, codicil or any other testamentary document.
- The creation, execution, variation or revocation of a trust.
- The creation, execution, variation or revocation of a power of attorney.
- The making, execution or making and execution of any instrument which is required to be stamped or endorsed under the Stamp Duty Ordinance (Cap. 117) other than a contract note to which an agreement under section 5A of that Ordinance relates.
- Government conditions of grant and Government leases.
- Any deed, conveyance or other document or instrument in writing, judgments, and lis pendens referred to in the Land Registration Ordinance (Cap. 128) by which any parcels of ground tenements or premises in Hong Kong may be affected.
- Any assignment, mortgage or legal charge within the meaning of the Conveyancing and Property Ordinance (Cap. 219) or any other contract relating to or affecting the disposition of immovable property or an interest in immovable property.
- An estate agency agreement entered into between an estate agent and its client.
- Oaths and affidavits.
- Statutory declarations.
- Judgments (in addition to those referred to in section 6) or orders of court.
- Bills of exchange within the meaning of the Bills of Exchange Ordinance (Cap. 19).
What Does an E-Signature Need to Be Valid?
Per the ETO, e-signatures including electronic and digital signatures will only be deemed valid if:
- An electronic record is accompanied with the associating signature to indicate authenticity and approval.
- The signatory uses a reliable and appropriate method to communicate the information in the document.
- The receiving party consents to using and receiving e-signatures.