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The Legal Status of Scanned and Faxed Documents and Signatures (November 2005)
Background Information
Governments in the United States and Canada have adopted laws to accommodate business over the Internet. Documents and signatures can now exist solely in electronic form. Laws have been enacted that give electronic documents and signatures the same legal effect as those on paper.
Highlights of laws adopted in the United States and Canada
United States - Federal Law
Electronic Signatures in Global and National Commerce Act (E-Sign Act)
Came into effect October 1, 2000. Gives legal effect to electronic signatures and records. Applies to transactions in interstate or foreign commerce. Parties must agree in advance to conduct business electronically. Agreement may be given electronically. Allows documents to be retained electronically even if original versions are required to be retained. Enables large cost savings for businesses and government agencies by eliminating paper processes and storage. Forbids States from prohibiting parties from using electronic signatures and electronic records in lieu of paper records and hand-written signatures. Insurance industry is specifically included in this law.
What qualifies as an electronic record?
Faxed, scanned and emailed documents. A contract or other record, created, generated, sent, communicated, received or stored electronically.
What qualifies as an electronic signature?
Faxed, scanned or emailed signatures. Signature must be attached to or associated with a contract or record and executed or adopted by a person with the intent to sign the record.
United States - State Laws
Uniform Electronic Transaction Act
Has been adopted or will be adopted by most States. Gives legal effect to electronic records and signatures. Requires that both parties agree to conduct transactions electronically. Agreement may be given electronically. Allows electronic records and information to be used for retention purposes.
What qualifies as electronic?
Fax, scanners, email, information processing systems, computer equipment and programs, electronic data interchange, voice mail, telex and similar technologies.
What qualifies as an electronic record?
Faxes, scanned documents, emails, information stored on a computer hard drive or floppy disc, voice mail messages, messages on a telephone answering machine, audio and video tape recordings.
What qualifies as an electronic signature?
Faxed, scanned or emailed signatures, your name typed on an email, a voice on an answering machine and digital signatures.
Canada - Federal Law
Personal Information Protection and Electronics Document Act
Came into effect May 1, 2000. Allows electronic transactions under federal laws that formerly required paper. Allows federal legislation to be amended so documents can be transmitted electronically and alternative types of signatures can be legally accepted. E.g. Bank Act, Income Tax Act. Where federal law requires documents to be retained it permits documents to be retained electronically.
What qualifies as data?
What qualifies as an electronic document?
Faxed or scanned documents and emails. Data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.
What qualifies as an electronic signature?
Faxed, scanned or emailed signatures. Consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document.
Canada - Provincial Law
All provinces have adopted laws giving legal effect to electronic documents and signatures. (The Northwest Territories and Nunavut have not adopted laws yet.) The parties must agree to conduct business electronically. Agreement may be given electronically.
What qualifies as electronic?
Faxed or scanned documents and emails. Information created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means.
What qualifies as an electronic signature?
Faxed, scanned or emailed signatures. Information in electronic form that a person has created or adopted in order to sign a document and that is in, attached to, or associated with the document.
Resources
United States
Federal Law
Electronic Signatures in Global and National Commerce Act (E-Sign Act) can be found in text format at: http://www.access.gpo.gov/index.html
The E-Sign Act can be found in PDF format at http://www.access.gpo.gov/index.html
State Law
Baker & McKenzie, a leading global law firm, has an excellent summary of State legislation on electronic commerce and digital signatures at http://www.bakernet.com/ecommerce/legis-t.htm
Canada - Federal and Provincial Law
Baker & McKenzie, a leading global law firm, has an excellent summary of Federal and Provincial legislation on electronic commerce and digital signatures at http://www.bakernet.com/ecommerce/canada-t-pass.htm
Disclaimer: |
This information is a general summary of the law in the United States and Canada and should not be construed as legal advice. Specific questions should be referred to your attorney. |
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