E-Signatures and Assents

Is clicking ‘OK’ on a web site the equivalent of a signature, or just an act of assenting with legal effect, e.g. to accept an offer to contract? Is there a useful or meaningful distinction any more between a signature and an act of assent (at least when the signature is intended to show assent)?

Recently an appellate court in the US found that clicking OK to a web form satisfied the requirements of the Copyright Act (US) that a transfer of copyright had to be in writing and signed by the transferor. The court relied on the Electronic Signatures in Global and National Commerce (E-SIGN), which provided that the law should not discriminate against a signature because it was in electronic form.

E-SIGN, like the Uniform Electronic Transactions Act in the US, and like the Uniform Electronic Commerce Act in Canada, makes part of the definition of an electronic signature that it be created ‘with intent to sign’.

Our law rarely requires a signature, though signatures are widely used as a practical way of linking a person (legal entity) with a text with legal consequences. When the law does require a signature, as the Copyright Act does (in the US and I believe in similar circumstances in Canada), should one insist on the intention to sign? Or should one presume the intention from the act of assent? Should the creator of the opportunity to register assent create evidence of intention to sign, e.g. by saying ‘sign by clicking here’ or ‘clicking OK will sign this agreement’?

If an agreement must be in writing as well as signed, must a specific text be associated with the signature, or will a general description of the transaction be enough? What is the ‘writing’ in such a case?

These all appear to be old questions, but particular statutory obligations can make them need to be resolved expressly – thus the July 2013 decision of the Fourth Circuit. The winning party in that case had been very careful about setting up its system of assignment of copyright, and it worked.

Are these questions relevant any more to your practice, or are the answers safely taken for granted?

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