With RPost’s RMail and RSign electronic signature and electronic contracting services, one can send sales contracts, change orders, and other agreements as documents attached to an email, and recipients can electronically signoff on the contract with an indication of acceptance in an associated email or a few mouse-strokes in their web browser.
In the United Kingdom, the Electronic Communications Act of 2000, Part II “Facilitation of Electronic Commerce, Data Storage, Etc.” defines what would be considered an electronic signature that would have standing in a legal proceeding.
In the Act, Part II(2), it states, “(2) For the purposes of this section an electronic signature is so much of anything in electronic form as— (a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and (b) purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both. (3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that— (a)the signature, (b) a means of producing, communicating or verifying the signature, or (c) a procedure applied to the signature, is (either alone or in combination with other factors) a valid means of establishing the authenticity of the communication or data, the integrity of the communication or data, or both.
The RPost systems provide for (a) the record of the signature logically associated with the communication or document, using visual and cryptographic techniques, and (b) provides a means of producing, communicating and verifying the signature and the signature’s association with the data with a reconstruction of a validate original, using a verification procedure that relies on cryptographic techniques.
The court admissibility of the resulting record and verification procedure has been reviewed and confirmed in the context of UK law by Alan Shipman, author of the British Standards Institute ‘Legal admissibility’ Code of Practice – BIP 0008 — in his legal opinion entitled, “RPost’s Registered E-mail™ Services and Evidence issues within the United Kingdom Legal System.”
In this legal opinion, Shipman concludes in reference to the RPost service, system and procedures:
(1) DELIVERY PROOF: RPost services provide a record of sending and receiving in accordance with the eIDAS by recording the recipient’s server’s receipt thereof;
(2) CONTENT PROOF: The encryption and tamper-detectability of RPost services preserve the contents of e-mails and their attachments so as to satisfy process requirements designed and compliant with evidence law and to establish evidence of content;
(3) OFFICIAL TIME STAMP: RPost services link to a trusted and objective time source provides essential and credible evidence in disputes in which the time an e-mail was sent or received is material to the case;
(4) ADMISSIBLE EVIDENCE: RPost service receipts are admissible as to their fact of delivery, as to their trusted time of delivery and as to the authenticity of their content;
(5) FUNCTIONAL EQUIVALENCE: RPost services can serve as the functional equivalent of paper mail, to be used in lieu of certified mail, registered mail, return receipt mail, private express mail services, fax logs and similar types of paper mail services;
(6) ELECTRONIC ORIGINAL: RPost’s Authentication Receipt™ and RSign Signature Certificate provides a methodology for demonstrating the trustworthiness of the electronic original, including the message content, attachments and transmission meta-data including the delivery audit trail;
(7) SELF-AUTHENTICATING EVIDENCE: The RPost system provides the ability to have e-mail evidence authenticated without relying on complexities of a system-wide authentication or chain of custody reviews within the sender’s and/or recipient’s IT infrastructure.
(8) THE UK LEGAL ADMISSIBILITY POSITION: Within the UK, the majority of instances where the contents of an e-mail will be used as evidence are those dealing with civil litigation. The appropriate legal system for civil litigation is defined by the Civil Evidence Act 1995, which states that any ‘statement contained in a document’ – and this will include statements in e-mails – is hereby shown to be admissible as evidence into a UK civil court. Therefore, one should focus on “authentication” of the e-mail that is to be used as evidence in civil litigation, in light of how a judge might need to accept such authentication. The party with the most evidential weight often has the upper hand and it is here that the strength of RPost’s “legal” proof capability is likely to prevail.
(9) EVIDENTIAL WEIGHT: Once legal admissibility is determined (e.g. can statements within an e-mail be admitted into court as evidence), the evidential weight of the information contained within the document must then be scrutinized. The ability to be able to prove the integrity of content of an e-mail (including any attachments) and its time of delivery are becoming increasingly important. There are common misconceptions around standard e-mail systems which can easily be exploited by one party or another to deny or dispute the integrity of an e-mail.
(10) CODE OF PRACTICE COMPLIANCE PROVISION: The Code of Practice (BIP 0008-2:2005, 6.7) discusses the advantages of e-mail systems that include a proof-of-delivery option. The Code notes that “whilst the receipt of such a confirmation message may be trustworthy, the absence of such a receipt may not be reliable evidence as to either delivery or non-delivery. It is important to note that the RPost “proof of delivery” capability speaks directly to this provision.
(11) AUTHENTICATION: To further enhance the potential evidential weight of an e-mail, the RPost system provides a mechanism for demonstrating the authenticity of a stored e-mail. This authentication can take place any time after the Registered Receipt e-mail has been received by the sender – the original message can be re-authenticated at any time. Where doubt occurs with an authenticated e-mail, a re-authentication could be performed ‘in front of the court’ if necessary to provide the strongest test possible of the validity of the evidence contained within the e-mail under question.