Legality of eSignatures in Bermuda

  • Background
  • Overview of the
    regulatory framework
  • Validity standards of
    electronic signatures
  • Validity standards of
    legal requirement for
    signature
  • Recognition of foreign
    certificates
  • Summary analysis
  • Summary scope of
    limitation
  • How does BoldSign help
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Background

Electronic signatures are rapidly transforming the document authentication landscape, both within the Republic of Bermuda and globally. They introduce efficient and environmentally conscious methods that are building momentum. The shift from paper to digital signatures accelerates the completion of various dealings.

For successful adoption in Bermuda, it is crucial to select an electronic signature tool that aligns with the nation’s legal stipulations, specifically the Electronic Transactions Act1. This is to ascertain electronic signatures’ legal validity compared to their handwritten counterparts within Bermuda. Despite the progressive acceptance, it is essential to recognize that some documents may still need a physical signature, and seeking legal consultation is advisable to navigate variable regional laws2.

The importance of the security surrounding electronic signature platforms must be recognized. Services need to integrate robust protection features such as data encryption, verifying signer identities, and providing trails for audits to deter wrongful access and guarantee document authenticity. For instance, BoldSign offers these imperative security features, complying with legal and security protocols.

For Bermuda enterprises, it is essential to emphasize legal conformity, elevate security measures, and choose user-friendly platforms for integrating electronic signatures into their business frameworks. This approach boosts productivity and ensures the protection of their business exchanges.

Overview of the regulatory framework

The use of electronic signatures and transactions within Bermuda are regulated by the Electronic Transactions Act3.

Bermuda’s governing regulation grants electronic signatures and transactions the same legal validity as manual ones4 provided that such use was consented to by both parties5. These transactions completed electronically cannot also be denied the evidentiary value solely on the grounds of being in electronic form6.
Where there exists a legal obligation or requirement for information to be in writing, an electronic record is deemed to meet that requirement if the information contained in the electronic record is accessible and capable of retention for subsequent reference.
The regulation categorizes electronic signatures into:
  • Standard electronic signature
  • Electronic signature associated with an accredited certificate.
A standard electronic signature is any data in electronic form attached to, or logically associated with, information that is used by a signatory to indicate his adoption of the content of that information and meets the following requirements. It is:
  • Uniquely linked to the signer.
  • Capable of identifying the signers.
  • Created using means that the signer can maintain under their sole control and
  • Linked to the information to which it relates in such a manner that any subsequent alteration of the information is revealed.
An electronic signature associated with an accredited certificate is an electronic signature that is associated with an accredited certificate issued by an authorized certification service provider.
This kind of signature can be used to sign all documents required by law as a requirement and obligation to be signed7.

Validity standards of electronic signatures

Uniquely linked to the signer​

An advanced electronic signature must be uniquely connected to the person using it. The signature must be uniquely made with methods only the signer can access, like a private key and confidential information, to verify their identity.

Use and incorporation remain the sole control of the signatories

The person using the advanced electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent signature forgery.

Identify the signatory

The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, a Personal Identification Number (PIN), an email address, or even a company registration number.

Tracking down any alterations made after signing

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through an audit trial. Audit trails record the signer’s I.P. address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place.

Validity standards of legal requirement for signature

To meet a legal obligation and requirement for electronic records, it is required that the method used8:

  • Can identify the user and the intention to sign or adopt the information.
  • Is reliable and appropriate for the purpose of the signature.
Having met the above standards, such a signature shall not be denied validity because it is not an electronic signature under the act or that it is not associated with an accredited certificate9.

Recognition of foreign certificates

Certificates created outside the territory of Bermuda are deemed valid upon the Minister assessing that:

  • It meets the same obligations as an accredited certificate in the territory.
  • The certifying body meets the standards of the authorized certifying body.
Upon payment of the required fees, such certificates are deemed accredited and can, therefore, be used.
Additionally, the Minister maintains the right to revoke any recognition previously issued by announcing the withdrawal in the Gazette. Prior to revocation, the Minister must notify the affected entity about the intention to withdraw the recognition and provide the reasons for the planned rescindment. The entity in question then has 14 days from the date of the notification to submit written objections to the revocation. The Minister must consider these objections before reaching a definitive decision10.

Summary analysis

Under the Electronic Transactions Act 1999 [1999], as amended in 2011

  • Type of signature

  • Features

  • Unique features

  • Validity standards

  • Conditions for recognition of foreign certificates and signatures

  • Standard Electronic Signature (SES)

    • Uniquely linked to the signatory,
    • Capable of identifying the signatory,
    • Created using means that the signatory can maintain his control and
    • Linked to the data it relates to so that any subsequent change to the data is detectable.

  • N/A

    • Identifies the user and the intention to sign or adopt the information.
    • It is reliable and appropriate for the signature.
    • Valid for the jurisdiction of origin.
    • The certifying body meets the standards of the authorized certifying body.
    • Meets the same obligations as an accredited certificate in Bermuda.
    • Payment of requisite fees.

  • Electronic signatures associated with an accredited certificate.

    • Uniquely linked to the signatory,
    • Capable of identifying the signatory,
    • Created using means that the signatory can maintain his control and
    • Linked to the data it relates to so that any subsequent change to the data is detectable.

  • Based on a certificate from an authorized certification service.

    • Identifies the user and the intention to sign or adopt the information.
    • It is reliable and appropriate for the signature.
    • Valid for the jurisdiction of origin.
    • The certifying body meets the standards of the authorized certifying body.
    • Meets the same obligations as an accredited certificate in Bermuda.
    • Payment of requisite fees.
    • Type of EsignatureFeaturesUnique featuresValidity standardsConditions for recognition of foreign certificates and signatures
    Standard Electronic Signature
    • Uniquely linked to the signatory,
    • Capable of identifying the signatory,
    • Created using means that the signatory can maintain his control and
    • Linked to the data it relates to so that any subsequent change to the data is detectable.
    		 N/A
    • Identifies the user and the intention to sign or adopt the information.

    • It is reliable and appropriate for the signature.
    • Valid for the jurisdiction of origin.
    • The certifying body meets the standards of the authorized certifying body.
    • Meets the same obligations as an accredited certificate in Bermuda.
    • Payment of requisite fees.
    Electronic signatures associated with an accredited certificate. Based on a certificate from an authorized certification service.

    Scope of limitations

    Electronic signature transactions and their utilization do not have universal legal acceptance for document finalization. Consequently, there are specific types of transactions and uses for which electronic signatures are suitable, and others are not.

    Documents that can be signed

    Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:
    • Human resources
    • Procurement
    • Non-disclosure agreements (assuming they are contracts, not formal deeds)
    • Software license agreements
    • Public petitions
    • Insurance industry
    • Educational field, etc.

    Exemptions

    In limiting the scope of electronic transactions, the law on Electronic Commerce exempts the following transactions from completion in electronic signatures:
    • The creation, execution, or revocation of a will or testamentary instrument.
    • The conveyance of real property or the transfer of any interest in real property.

    Summary scope of limitations

  • Permissible transactions

  • Exempted transactions.

    • Human resources
    • Procurement
    • Non-disclosure agreements (assuming they are contracts, not formal deeds)
    • Software license agreements
    • Public petitions
    • Insurance industry
    • Educational field, etc.
    • Testamentary instruments
    • Conveyancing
    • Permissible transactionsExempted transactions.
    • Human resources
    • Procurement
    • Non-disclosure agreements (assuming they are contracts, not formal deeds)
    • Software license agreements
    • Public petitions
    • Insurance industry
    • Educational field, etc.
    • Testamentary instruments
    • Conveyancing

    How does BoldSign help

    The following elements available within BoldSign ensure compliance with Bermuda eSignature laws:

    • Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This helps ensure that the document is only accessed by the intended signer and cannot be tampered with.
    • Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds a layer of security to the signing process.
    • Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
    • Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
    • Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This helps ensure that the signer is aware of the implications of signing electronically and has consented.
    • Custom terms: Getting your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
    Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.
    However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.
    Syncfusion makes no warranties of any kind, including but not limited to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

    Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.

    1 Electronic Transactions Act 1999 [1999] as amended in 2011 – [https://afyonluoglu.org/PublicWebFiles/e-imza/int-legislation/Bermuda-Electronic%20Transactions%20Act%201999.pdf]
    2 Anna Nordén, ‘Electronic signatures in a legal context’, in Cecilia Magnusson Sjöberg, editor, I.T. Law for I.T. Professionals – an introduction (Studentlitteratur AB; 2005) pp. 152-154;
    3 Electronic Transactions Act 1999 [1999] as amended in 2011 – [https://afyonluoglu.org/PublicWebFiles/e-imza/int-legislation/Bermuda-Electronic%20Transactions%20Act%201999.pdf]
    4 Ibid Art. 4 & 15
    5 Ibid Part II
    6 Ibid. Art. 8
    7 Ibid. Art. 19
    8 Electronic Transactions Act 1999 [1999] as amended in 2011 – Art. 11 – [https://afyonluoglu.org/PublicWebFiles/e-imza/int-legislation/Bermuda-Electronic%20Transactions%20Act%201999.pdf ]
    9 Ibid
    10 Ibid. Art. 21

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