Signing Documents via Email: How to Make it Compliant

The straightforward answer is: it depends. Generally, a simple scan of a handwritten document sent by email, or an email containing text expressing consent, does not hold the same legal weight as a wet signature or an advanced/qualified electronic signature.

The eIDAS Regulation (electronic IDentification, Authentication and trust Services) distinguishes between different types of electronic signatures, each with a varying degree of legal robustness:

• Simple Electronic Signature (SES): This is the most basic form, such as accepting terms and conditions by ticking a box or, in certain contexts, sending an email with an expression of consent. Its legal validity is subject to judicial interpretation, where the judge will evaluate the context and the reliability of the methods used.
• Advanced Electronic Signature (AES): This provides a higher level of security and unique attribution to the signatory, being exclusively linked to them and created using means over which the signatory can maintain sole control. It is suitable for many contractual contexts and offers greater legal assurances.
• Qualified Electronic Signature (QES): This is the most secure form and has the same legal effect as a wet signature. It requires the use of a qualified signature creation device and a qualified certificate.

Signing a document and sending it via email can be considered an SES. However, to be considered "compliant" and to minimise legal risks, it is crucial that the signing process is traceable, verifiable, and ensures the integrity of the document. This is particularly vital for managing complex documentation like Documents for short-term rental property managers, where legal validity is essential.

The main problem with traditional signatures managed exclusively via email is the lack of elements that guarantee their authenticity and integrity.

When we talk about "signing by email", we usually mean one of the following scenarios:

1. Scan and send: The document is printed, signed by hand, scanned, and then sent by email. Here, email is merely a transmission method. The problem lies in the integrity of the document after scanning and the difficulty of remotely verifying the authenticity of the handwritten signature.
2. Digital signature inserted as an image: Many people insert an image of their signature (perhaps computer-generated) into a PDF and then send it by email. This has no legal value unless accompanied by a certificate or a robust authentication process.
3. Consent expressed via text: Sending an email with phrases like "I confirm and accept" may be valid as a simple electronic signature (SES) in some contexts, but it is extremely weak from an evidentiary standpoint in case of disputes.

In all these scenarios, fundamental guarantees are missing:

• Signatory identification: Did that person actually affix the signature?
• Document integrity: Has the document been altered after signing?
• Non-repudiation: Can the signatory deny having signed?

These shortcomings expose parties to significant legal risks and can render an agreement void in the event of a dispute.

The real innovation and solution to the problem lies in integrating the convenience of email as a communication vehicle with the legal robustness of advanced electronic signatures (AES) or qualified electronic signatures (QES). This means using e-signature software that allows you to send signature requests via email and manage the entire process securely.

Here's how the ideal process works:

1. Document preparation: The user prepares the document (e.g., a Lease agreement online) on the e-signature platform.
2. Sending the signature request: The system sends an email notification to the signatories. This email does not directly contain the document to be signed, but a secure link that redirects to a protected page on the signature platform.
3. Secure signing process: By clicking on the link, the signatory accesses the platform. Here, the signatory's identity is verified (e.g., via an OTP code sent to their phone number, credentials, SPID, etc.). The document is displayed, and the signatory applies their electronic signature (AES or QES) directly on the platform.
4. Traceability and archiving: Every step (email opening, access, viewing, signing) is recorded in the "signature log" which constitutes legal proof. Once signed by all parties, the document is sealed and made available for download to all signatories and archived in compliance with regulations.

In this way, email acts as an efficient communication channel, but the signing process itself takes place in a protected and validated environment, ensuring full legal compliance. The signature platform handles all technical and legal aspects, such as signatory identification, document integrity, and the creation of an audit trail.

To ensure the validity and security of digital signatures, it's crucial to steer clear of these common pitfalls:

• Relying solely on an image of the signature: As mentioned, a scanned signature or an image pasted onto a document holds no independent legal value. This is a very common mistake but it does not guarantee authenticity.
• Failing to verify the signatory's identity: Relying solely on the sender's email address to identify the signatory is risky. Email addresses can be compromised or used by individuals other than the rightful owner.
• Not tracking the process: If the various stages of the signing process are not meticulously recorded (who opened the email, when they viewed the document, when they signed, from which IP address), you'll lack evidence in case of a dispute.
• Improper document retention: Digitally signed documents must be retained in accordance with legal standards to ensure their integrity and accessibility over time. Simply saving them to a local hard drive may not suffice.
• Underestimating the importance of context: For certain types of contracts or transactions, the law specifically requires an advanced or qualified electronic signature. Using a simple electronic signature (SES) where an advanced electronic signature (AES) or qualified electronic signature (QES) is mandated can render the contract null and void.
• Sending unprotected attachments: Never send a sensitive document via email without password protection or encryption, especially if it contains personal data or confidential information.

It's crucial to understand that, while electronic signatures are widely accepted, not all forms carry the same legal weight. For particularly complex or specific acts (e.g., certain real estate transactions, wills), the law may require specific forms of authentication or even a handwritten signature with notarisation. It is always advisable to consult a legal professional for specific and highly complex cases, to ensure you use the most appropriate type of electronic signature for each requirement. The choice of signature (SES, AES, QES) must be proportionate to the legal risk of the operation.

Understanding the nuances of signing by email is a crucial step towards fully digitalised contract management. To further delve into how to digitalise your contract process and make the most of e-signature tools for specific types of agreements, we recommend reading our article on Occasional Collaboration Agreement: Template and Online Signing for Professionals. This will help you integrate the knowledge gained into a broader, more optimised workflow.

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