The Covid-19 pandemic has impacted the global economy, changed the way most businesses operate and changed traditional trading habits. Under the influence of social distancing, travel restrictions and suspension of commercial flights, the form of work or face-to-face transaction has faced significant obstacles. Instead, during the stressful epidemic period, most businesses work online instead of at the office and conduct online transactions through e-signatures and e-contracts instead of traditional transactions. So, what is an e-signature, and does it have legal validity? Within the scope of this article, the author will focus on analyzing the provisions of Vietnamese laws related to this issue.
When referring to the concept of “e-signature”, many people think about the concept of “digital signature” and equate these two concepts as one. However, this is a misconception, in essence, e-signature is a general concept including the concept of digital signature. An electronic signature is established in the form of words, letters, numerals, symbols, sounds or other forms by electronic means, logically attached or associated with a data message and capable of certifying the person who has signed the data message as well as the approval of such person to the content of the signed data message. Meanwhile, “digital signature” means a form of e-signature created by the transformation of a data message using asymmetric cryptography in which those who have initial data messages, and the public key of the signatory can be determined exactly: (a) The above transformation is created by the correct private key corresponding to the public key in the same key pair; (b) The integrity of the content of data messages since the implementation of the mentioned above transformation. Currently, digital signatures (also called token) are widely used for paying taxes online, submitting customs declarations, social insurance, issuing invoices or transacting with banks. This type of signature is rarely used for signing contracts.
In addition to digital signatures, image signatures and scanned signatures are also forms of e- signatures. As for the image signature, this type of signature is commonly used for low-value contracts, signed many times, and applied in cases the parties are not in the same place to be able to sign directly. When using an image signature, the signatory will insert an image of his/her signature into the signature box in the e-contract and send it via email. Regarding the scanned signature, this type of signature is commonly used for cases in which the parties entering into the contract have difficulties in terms of geographical distance. To use the scanned signature, the signatory will print the e-contract and directly sign the contract. After that, the signed paper contract will be converted into electronic form by taking photographs or scanning and sending it to other parties via email.
2. The legal value of electronic signatures:
Although Vietnamese laws already have provisions governing e-signatures. However, in fact, these regulations only apply to digital signatures, not the use of scanned signatures and image signatures. Specifically, regulations on the legal value of e-signatures are stated in Article 24 of the Law on Electronic Transactions 2005 and guided by Article 8 of Decree 130/2018/ND-CP. Both these regulations only deal with the case of digital signatures., especially Article 8 of Decree 130/2018/ND-CP is also specifically called “legal value of digital signatures”.
Accordingly, an e-signature is legally valid when satisfying the following conditions:
a) A method of creating an electronic signature that permits to identify signatories and indicating their approval of the contents of the data message;
b) The method is sufficiently reliable and appropriate to the purpose for which the data message was originated and sent.
The lack of legal documents regulating scanned signatures and image signatures makes the determination of the legal value of contracts and documents signed with these two types of signatures still controversial. However, according to the author’s opinion, the fact that the image signature and the scanned signature have not been stipulated in any legal documents cannot affect the legal value of such types of signatures, if the signature is signed by the person having authority and can be capable of expressing the will of the signatory.