1. The area of electronic signatures is a novel area and therefore it is untested in the Cyprus courts. In this respect, we have to rely on the Cyprus law governing Electronic Signatures (55(I)/2018) (the “Law”); Regulation (EU) No. 910/2014 on the electronic identification and trust services for electronic transactions in the internal market (the “Regulation”), together with any other guidance from UK case law or other authorities.
  2. Pursuant to Article 3 of the Regulation, there are three types of E-Signatures:
    1. ‘electronic signature’ 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.
    2. ‘advanced electronic signature’ means an electronic signature which meets the following requirements (as set out in Article 26 of the Regulation):
      1. it is uniquely linked to the signatory;
      2. it is capable of identifying the signatory;
      3. it is created using electronic signature creation data that the signatory can, with a high level of confidence use under his sole control; and
      4. it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
    3. ‘qualified electronic signature’ 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 signatures.
  3. On 13 June 2018 the Law was introduced in order to align the Cyprus legislation on e-documents and e-signatures with the Regulations. With respect to the legal validity of E-Signatures (as these are defined in Article 3 of the Regulation), Article 9 of the Law provides that an E-Signature, which is in an electronic form or that it does not meet the requirements of the qualified electronic signature, is admissible before a court or a public body. Article 9(3) stresses that a Qualified E-Signature has the equivalent legal effect of a handwritten signature.
  4. As an indication, we set out some considerations that should be taken into account under Cap 9:
    1. ‘document’ under Cap 9 means anything on which any information or representation of any kind, including electronic signatures, electronic seals, electronic time stamps, electronic documents, electronic consignment service as defined in Regulation (EU) No. 910/2014 is stated or represented, and “copy” (in relation to a document) means anything on which that information or representation has been copied by any means, either directly or indirectly;
    2. Pursuant to Article 34(4) of Cap 9 the Court may, for the purposes of proper administration of justice, and having regard to all the facts of the case, refuse to accept as evidence a part of a document or a copy. Therefore, despite the presumption that E-signatures are admissible in court proceedings, the court may refuse to accept it as evidence if, taking into account all the facts of the case, this would prejudice the administration of justice.
    3. Pursuant to Article 36 of Cap 9, the court, may having regard to all the facts of the case, refuse to accept as evidence a specific document or record, or a type of document or record.
  5. Even though the Law only provides that a Qualified E-Signature has the equivalent legal effect of a handwritten signature, this does not create a presumption that an E-Signature, not being a Qualified E-Signature, lacks legal validity. Article 25(1) of the Regulation, even though has not been precisely mirrored in the Law, it has direct effect on Cyprus law due to its status as a regulation, provides that ‘an electronic signature shall not be denied legal effect…solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.’ Therefore, the intention deriving from the Regulation is that an E-Signature should not be considered invalid just because it’s not a Qualified E-Signature. However, its validity will be determined by the court taking into account the specific circumstances in question.
  6. The preamble of the Regulation, and more specifically Recitals 26, 27, 48 and 48 which are set out below, are very helpful in determining the intention of the Regulation:(26) Because of the pace of technological change, this Regulation should adopt an approach which is open to innovation. (27) This Regulation should be technology-neutral. The legal effects it grants should be achievable by any technical means provided that the requirements of this Regulation are met.(48) While a high level of security is needed to ensure mutual recognition of electronic signatures, in specific cases, such as in the context of Commission Decision 2009/767/EC (1), electronic signatures with a lower security assurance should also be accepted. (49) This Regulation should establish the principle that an electronic signature should not be denied legal effect on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic signature. However, it is for national law to define the legal effect of electronic signatures, except for the requirements provided for in this Regulation according to which a qualified electronic signature should have the equivalent legal effect of a handwritten signature.
  7. Due to the lack of guidance or case law under Cyprus law we have considered the UK Law Commission’s ‘Electronic execution of documents’ Consultation Paper, as well as, UK case law. The Commission sets out a number of examples of what constitutes an E-Signature, two of which we set out below as they arguably reflect our scenario:
    1. Manuscript signing on screen – a signatory may use a stylus or fingernail to inscribe an image approximating to their usual manuscript signature.
    2. Clicking on ‘I accept’ – a signatory may click on an ‘I accept’ or ‘I agree’ button on a website as a way of signing an agreement. The Law Commission’s 2001 Advice suggested that the click could reasonably be regarded as the technological equivalent of a manuscript ‘X’ signature.
  8. In 2014 the court in Bassano v Toft [2014] EWHC 377 (QB) considered whether clicking on a button marked ‘I Accept’ and held that the agreement could be executed with an electronic signature.
  9. Another UK case which shares some indication as to the approach which will be followed by courts with respect to electronic documents/signatures is Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] EWCA Civ 265. The question was whether a chain of emails, and more specifically the fact that the last email confirming the contract of guarantee was signed off by the first name of one of the parties (Guy). It was argued that this was not a signature but a salutation of the communication and was not effective to authenticate a contract of guarantee. However, the court held: Mr Hindley put his name, Guy, on the e-mail so as to indicate that it came with his authority and that he took responsibility for the contents. It is an assent to its terms. I have no doubt that that is a sufficient authentication. Despite the fact that the facts of this case differ from the question at hand, it is an indication of the approach taken by UK courts with respect to electronic documents and E-Signatures.
  10. The court in Lindsay v O’Loughnan [2010] EWHC 529 (QB), had come to a similar conclusion as above noting that in a modern context a chain of emails signed off with the name of the party satisfies any requirement for a document to be in writing and signed, stressing however, that it would not be enough (in the context of emails) ‘that the email comes from a person’s email address without his having signed it in the sense of either including an electronic signature or concluding words such as ‘regards’ accompanies by the typed name of the sender of the email.

For further information or advice on the validity of electronic signatures  contact our team – info@papakyriacoulaw.com