Overview of electronic signature law and its legality in Ireland
Electronic signatures have been legally recognized in Ireland since 2000 with the passing of the Electronic Commerce Act.
As a European Union (EU) member, Ireland also abides by the Electronic Identification and Trust Services Regulation (eIDAS) that came into effect in 2016 and governs the EU.
Section 9 of the Electronic Commerce Act 2000 states with regard to electronic signatures, originals, contracts, and related matters that “information (including information incorporated by reference) shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, whether as an electronic communication or otherwise.”
In other words, electronic signatures and documents have just as much legal validity and are equally enforceable as wet ink signatures and paper documents under Irish law.
Regardless of the legality, parties conducting business electronically are often required to maintain a digital audit trail with detailed electronic records that support the existence, authenticity, and valid acceptance of a contract.
The use of simple (SES) and advanced (AES) e-signatures is fairly accepted across the board, but some transactions may still require a QES.
This may vary depending on the parties involved.
Here are some potential use cases for e-signatures in Ireland, including but not limited to:
- Human resource documents: Employee contracts, onboarding paperwork, etc.
- Healthcare documents: Treatment authorization, confirmation of notification, etc.
- Financial documents: Lending contracts, insurance agreements, etc.
- Consumer transactions: Sales contracts, purchase orders, real estate transactions, etc.
- Commercial agreements: Non-disclosure agreements (NDAs), procurement contracts, etc.
Specific legal requirements for e-signatures in Ireland
Section 13 of the Electronic Commerce Act 2000 states that while an electronic signature may be used in cases where a signature of a person or public body is required, there may be certain requirements that need to be met.
The party to which the document or electronic signature is being submitted may require an advanced electronic signature (AES), a qualified certificate (QES), or that the signature be issued by an accredited certification service provider or created by a secure signature creation device.
Additionally, the person in possession of the signature must consent to the use of their electronic signature.
When can you not use electronic signatures in Ireland?
While SES and AES are legally acceptable for many private documents and simple transactions, there are some agreements and entities requiring QES.
Beyond digital signatures, there are also some cases where a handwritten signature might still be required, and these include but are not limited to:
- Documents that need to be notarized
- The signing of wills codicils
- Property transfers
- Enduring powers of attorney
- Medical prescriptions issued by a practitioner registered in an EEA state besides Ireland
- Court or tribunal-related documents
A qualified electronic signature may also be mandatory in situations with documents requiring a witness.
You would do this by using a qualified electronic creation device (QESD) and receiving a digital certificate upon completion.
However, any document requiring notarization falls as an exclusion to the wide availability of electronic signatures under Irish law as they need to be done in person with a wet-ink signature and appropriate identification.
As a general rule, staying up to date with Irish law and any updates to policy is highly recommended.
If you’re uncertain whether the use of electronic signatures is allowed in a particular transaction, then it’s best practice to get legal advice and confirm with all of the parties involved.