It is undeniable that the use of e-signatures has dramatically increased and become a preferable method for signing a document during this unprecedented period of social distancing and working from home. The following three issues, i.e. virtual signature; presence of witness; and e-signature for company meetings, are explored in this alert.
•Is a virtual signature equal to an e-signature?
While the Electronic Transactions Development Agency (ETDA) Recommendation on the ICT Standard for Electronic Transactions: Electronic Signature Guideline already provides some examples of formats of e-signatures (i.e. the typing of the name at the end of an email, the scanning of a picture of a wet-ink signature and attaching it to an e-document, the use of a stylus, the clicking of an acceptance button, the ticking in an acceptance box, and the use of digital signature), a question still arises regarding “virtual signature” (i.e. a signature physically signed on a printed document in wet ink and scanned back into the computer). The question is whether a virtual signature is considered an e-signature or not.
The Electronic Transaction Act B.E. 2544 (2001) prescribes that an electronic signature means any symbol created in electronic form and affixed to an electronic message in order to establish the association between a person and an electronic message. Therefore, once the document is printed out, it is no longer a data message in an electronic format but rather a physical one. When such physical copy is signed physically using wet ink, such wet ink is not considered to be created in an electronic format. If one wishes to ensure that a non-electronic formatted document signed by wet ink could convert back to an electronic format and be legally valid, relevant laws and regulations on converting physical documents into e-documents must also be observed and complied with.
•Presence of a witness in an e-signature case
Some forms of legal agreements (e.g. deeds) require witnesses to confirm that the signature in question is genuine. This could become problematic during the social distancing period as it would not be convenient for a witness to be present at the same place as the signatory who wishes to execute a contract using an e-signature.
In a case where the law requires the signature of a witness (e.g. transferring shares entered in a name certificate), it is arguable whether the witness has to be “present physically” at the same place as the parties who are signing the agreement or whether electronically witnessing from a distance via live video call would suffice. We view that not only e-transaction/e-meeting related laws must be met, but also general legal formalities for each document/transaction must also be followed to ensure legal validity of such document/transaction.
•E-signature for company meetings
Recently, the Emergency Decree re: Electronic Meetings B.E. 2563 (2020) was published which allows electronic meetings to form a quorum without imposing the requirement of a minimum number of participants being physically at the same place. Leading from this, as shareholders’/directors’ meetings can take place electronically, minutes of meetings that require the signature of the meeting’s chairman or the appointment of shareholder proxies could also be done electronically during this period of social distancing. The chairman of the meeting could e-sign the minutes of the meeting and the shareholders could appoint their proxies using their e-signatures, which would have the same legal effect, provided that the legal criteria under e-signature laws and regulations are met. However, it also needs to be taken into account whether the internal regulations of the company allow for e-signatures.