eSignature Legality in Ireland

eSignature Legality Summary

Under the laws of Ireland, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document. The Electronic Commerce Act 2000 specifically confirms that contracts cannot be denied enforceability merely because they are concluded electronically. To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence under the eIDAS Regulation (Regulation (EU) No 910/2014) and Section 22 of the Electronic Commerce Act 2000, to support the existence, authenticity and valid acceptance of a contract.

In addition, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the “eIDAS Regulation”) came into force on 1 July 2016. The eIDAS Regulation repealed and replaced the e-Signatures Directive (1999/93/EC) and is directly applicable in the 28 member countries of the European Union.

The eIDAS Regulation is technology neutral and defines three types of electronic signature (SES, AES, QES). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. Articles 25(2) and (3) give a QES the same legal effect as a handwritten signature and ensure that a QES recognized in one Member State of the EU is also recognized in other Member States. Finally, Recital 49 allows national law to set requirements regarding which type of electronic signature may be required in which circumstances.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

• HR documents, such as employment contracts and other new employee onboarding processes

• commercial agreements between corporate entities, including NDAs, procurement documents, sales agreements

• consumer agreements

• sales documents related to residential and commercial real estate transactions

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES

Use cases where an electronic signature other than SES may be required include:

• QES – document signatures that require a witness, if signer and witness both use it (Section 14 of the E-Commerce Act)

• QES – documents that require execution under seal (Section 16 of the E-Commerce Act)

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.

• Handwritten - wills, codicils, trust documents and enduring powers of attorney (Section 10, E-Commerce Act)

• Handwritten - documents governing the manner in which an interest in real property (including a leasehold interest in such property) may be created, acquired, disposed of or registered (Section 10, E-Commerce Act)

• Handwritten - statutory/sworn declarations and affidavits (Section 10, E-Commerce Act)

• Handwritten - documents pertaining to the rules, practices or procedures of a court or tribunal (Section 10, E-Commerce Act)

• Handwritten - prescriptions issued by a medical practitioner registered in an EEA state other than Ireland which are presented for dispensing in Ireland (Regulation 7, Medicinal Products (Prescription and Control of Supply) Regulations 2003.

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

Local Technology Standards

As a Tiered eSignature Legal Model country, Ireland supports the concept of a QES (Qualified Electronic Signature), requiring independent accreditation for those signatures by an approved certification body. While QES is only legally required for limited types of transactions, as previously discussed, Ireland, as a member of the European Union, follows ETSI (European Telecommunications Standards Institute) standards to define the technical requirements for a QES. In compliance with the eIDAS Regulation, Ireland must maintain a publicly accessible list of supervisory bodies for qualified certificated providers together with other countries in the European Union.  Currently only one certification service provider has notified the Minister for Communications, Energy and Natural Resources that qualified certificates issued by it (in relation to a Timestamp Service) meet the requirements of the Electronic Commerce Act 2000. Accordingly, electronic signatures are not commonly used in Ireland for documents under seal or documents that must be witnessed.