Startup and video game law, from a Canadian and U.S. perspective
How to Implement Electronic Signatures
Online agreements require an electronic form of your signature, whether you click “I agree” or use a digital version of your offline signature. Electronic signature laws in the U.S. and Canada do not address the correct signature format. Instead, these laws focus on the correct process for creating an enforceable signature.
Three key considerations guide the electronic signature process:
How do you identify the signatory? In the case of a prospective user agreeing to a Terms of Service, identification may come in the form of an email address, first and last name and IP address. Given the impersonal nature of online agreements, the identification challenge is establishing that signatory is, in fact, the signatory.
How do you establish intention to sign? Intention could be established through a digital version of your offline signature applied to a document or a user clicking “I agree.” Ultimately, the user must understand what they are agreeing to and that they are, in fact, agreeing. For example, placing the “I agree” button after the agreement provides the user an opportunity to understand the agreement before being asked to agree to it.
How are electronic signature records retained to ensure originality and ease of production? Integrity may be established through a fixed user acceptance process whereby any user, in order to access a website, was required to accept certain terms. Alternatively, in the case of a more traditional signed agreement, the agreement copy was retained in a locked file format, with date and time of signature logged. In both cases, establish an electronic audit trail.
While there is no correct type of online signature, there is a correct process for online signatures that should be considered whenever an online agreement is required.