28 Nov 23
Use of Electronic Signatures in Ireland
The use of electronic signatures in Ireland was relatively uncommon until the COVID-19 pandemic when restrictions and the move to remote working meant businesses had to embrace new ways of working. With more businesses continuing to embrace the use of electronic signatures it is worth understanding the legislation governing their use.
The use of electronic signatures in Ireland is governed by the Electronic Commerce Act 2020 (the “2020 Act”) and Regulation (EU No 910/2014) (the “eIDAS Regulation”).
Under the eIDAS Regulation, all EU member states must acknowledge digital signatures as legally valid and the 2020 Act provides that an electronic signature has the same effect as a wet ink signature, subject to certain exceptions.
Both the 2020 Act and the eIDAS Regulation recognise three different types of electronic signatures, but it should be noted that the standard applied to the third category, while similar, is not identical in the two pieces of legislation:
Simple Electronic Signatures (SES) – which identifies the signatory by electronic means and can take many forms, such as a simple typed signature or initials, a scanned handwritten signature or an electronic signature using an electronic device such as a stylus or finger trace.
Advanced Electronic Signatures (AES) – a signature that is uniquely linked to the signatory, is capable of identifying the signatory, is created using a method that is under the signatory’s sole control and which is linked to other electronic data which would detect any alteration, and which is typically provided by means of an electronic document signature platform such as DocuSign.
Qualified Electronic Signatures (QES) / Advanced Electronic Signature based on a Qualified Certificate (AESQC) - specific digital signature implementation that have met 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. The additional security measures required here are not currently routinely available on electronic document signature platforms and, as a result, QES and AESQC are not commonly used in Ireland.
Subject to certain exceptions, a SES or AES can be used for most contracts and legal documents where both parties consent to the use of electronic signatures. Examples include HR documents, commercial contracts between corporate entities, consumer agreements and sales documents.
It should be noted, however, that certain public bodies in Ireland have restrictions on the use of e-signatures, so it is important to check if any such restrictions apply when dealing with public bodies. Similarly, certain documents creating, acquiring or disposing of an interest in real property must be signed using a wet ink signature.
A further consideration to be aware of is the requirement, under Irish company law, for deeds to be executed under seal by Irish companies. While both the 2020 Act and the eIDAS Regulation make provision for the use of an ‘electronic seal’, it is unclear whether the ‘electronic seal’ created by the 2020 Act and the eIDAS Regulation will be deemed to meet the requirements of the common seal under company law legislation. Furthermore, as with QES and AESQC signatures, e-sealing is not commonly offered by electronic document platforms.
The 2020 Act explicitly states that electronic signatures cannot be used for the following documents that require handwritten or wet ink signatures:
wills, codicils, trust documents, and enduring powers of attorney.
documents governing how an interest in real property may be created, acquired, disposed or registered.
affidavits and sworn statutory declarations.
documents relating to the rules of court or a tribunal.
certain state body documents that mandate wet ink signatures.
any other documents where wet ink signatures are required under the specific terms of the agreement itself.
Recent Developments – Irish Companies Registration Office (CRO) filings
Following a recent upgrade to the CRO’s online filing system (known as CORE), electronic signatures on a range of filing forms, which previously required the submission of wet ink signatures by post, are now accepted. This has been an extremely welcome initiative for company officers and company secretarial practitioners alike, speeding up the process for the filing and registration of statutory forms.
For further information, please contact Ronan Donohoe.