Classification of Law
E-Signature Legality Summary
The ETO provides the legal framework for the recognition of electronic records, contracts, and signatures, giving them the same legal status as their paper counterparts. These sections in particular address the validity of electronic records, signatures and contracts:
- Section 5, which provides that electronic records satisfy any requirements that information be given in writing if the information contained in the electronic records is accessible;
- Section 6, which governs the use of electronic and digital signatures and establishes that Hong Kong is a “two-tiered” jurisdiction - recognizes these two forms of electronic signatures; digital signatures are required when transacting with government entities and the document to be executed is required to be signed;
- Section 7, which provides that electronic records satisfy any requirements that information be presented or retained in its original form if the information contained in the electronic records satisfies integrity and legibility requirements;
- Section 8, which provides that electronic records satisfy any requirements that information be retained if the information contained in the electronic records remains accessible, in its original format (or accurately represented in another format) and certain identification information is retained; and
- Section 17, which addresses the formation and validity of electronic contracts.
Electronic records and electronic signatures are prima facie admissible as evidence in Hong Kong courts and will generally not carry less evidentiary weight as compared to hard copy records and wet-ink signatures simply by virtue of being electronic.
Types of Electronic Signature
An “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.
A “digital signature” in relation to an electronic record, means a specific type of electronic signature of the signer generated by the transformation of the electronic record using an asymmetric cryptosystem and a hash function such that a person having the initial untransformed electronic record and the signer’s public key can determine:
- Whether the transformation was generated using the private key that corresponds to the signer’s public key, and
- Whether the initial electronic record has been altered since the transformation was generated.
Where a signature is required, the electronic signature must be:
- Attached to or logically associated with an electronic record, and
- Executed or adopted for the purpose of authenticating or approving the electronic record.
Documents That May be Signed Electronically
When transacting with non-governmental entities, an electronic signature is enforceable under the ETO if:
- it is attached to or logically associated with the relevant electronic record for the purpose of identifying the signatory and indicating the signatory’s authentication or approval of the information contained therein;
- the method used to attach or associate the signature is reliable and appropriate having record to all the relevant circumstances; and
- the person to whom the signature is to be given consents to the use of such method.
When transacting with a government entity, and where the rule of law requires a signature of a person, or provides for certain consequences if the document is not signed by the person, then the person may only use a digital signature that is:
- supported by a recognized digital certificate;
- generated within the validity of such digital certificate; and
- used in accordance with the terms of such digital certificate.
The ETO enumerates specific categories for which documents cannot be executed electronically:
- wills, codicils or any other testamentary documents;
- trusts (other than resulting, implied or constructive trusts);
- powers 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;
- deeds, conveyances or other documents or instruments 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;
- assignments, mortgages or legal charges within the meaning of the Conveyancing and Property Ordinance (Cap. 219) or any other contract relating to or effecting the disposition of immovable property or an interest in immovable property;
- documents effecting a floating charge referred to in section 2A of the Land Registration Ordinance (Cap. 128);
- oaths and affidavits;
- statutory declarations;
- judgments (in addition to those referred to in section 6) or orders of court;
- warrants issued by a court or a magistrate;
- negotiable instruments (but excluding cheques that bear the words “not negotiable”); and
- proceedings before various courts and tribunals of Hong Kong.
The crux of whether transaction documents can be signed electronically is the type of document and not the type of transaction to which the document relates.
If the law does not require that the document be signed, then the parties can use any form of electronic signature to sign. If disputed, the party seeking to rely on the electronic signature may need to produce evidence of its validity through external evidence such as authentication of the signer, that the document was rendered tamper-evident after signing, and an audit log.
DISCLAIMER: The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so DocuSign cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a licensed attorney in your area.
Last updated: September 07, 2021
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