Electronic Signature Laws & Regulations - Hong Kong
Electronic signatures are popular in consumer agreements in Hong Kong, particularly in online transactions. However, use of electronic signatures is increasing for less complex agreements, such as purchase orders or procurement contracts. There is also increasing use of digital signatures, supported by recognized digital certificates, around online government services.
In Hong Kong, the Electronics Transaction Ordinance (ETO) governs the use of electronic and digital signatures. The ETO recognizes two different types of signatures that have the same legal effect as a physical signature: electronic signatures and certificate-based digital signatures. Both electronic and digital signatures are recognized as having the same legal status as a handwritten signature as long as the requirements under the ETO have been satisfied. However, unlike ordinary electronic signatures, certificate-based digital signatures are granted a statutory presumption as to their veracity and authenticity if they are supported by a certificate issued by a recognized certification authority.
Digital signatures. In order to be enforceable under the ETO, a digital signature must be:
- supported by a recognized certificate (i.e. a digital certificate issued by a recognized certification authority);
- generated within the validity of the recognized certificate; and
- used in accordance with the terms of the recognized certificate.
If a government entity is a party to any transaction, then only a digital signature will be recognized as satisfying any signature requirement under the law.
The Government Chief Information Officer maintains an online public record of each recognized certification authority, which can be accessed here: https://www.ogcio.gov.hk/en/our_work/regulation/eto/ca/disclosure_records/index.html
Electronic signatures. In order to be enforceable under the ETO, an electronic signature must be:
- Reliable – the signatory must attach or logically associate the electronic signature with an electronic record, in such a way as to identify themselves or indicate their approval of the contents of the record;
- Appropriate – the method used must be reliable and appropriate;
- Agreed – the recipient of the signature must consent to the use of an electronic signature (which includes implied consent).
There is currently minimal case law regarding the enforceability of electronic signatures. However, due to the increasing popularity of electronic signatures for online transactions, Hong Kong courts are generally familiar with the laws surrounding electronic and digital signatures.
Use cases that require a traditional signature
Hong Kong recognizes the validity of electronic signatures for most contracts and documents, but under the ETO the following documents must be signed with a traditional wet signature in order to be valid:
- creation, execution, variation, revocation, revival or rectification of a will, codicil or other testamentary document;
- creation, execution, variation or revocation of a trust (other than a resulting, implied or constructive trust);
- creation, execution, variation or revocation of a power of attorney;
- documents that are subject to stamp duty (e.g. a lease, sale of property, sale of stock, etc.);
- any government conditions for the grant of land and or government leases;
- any deed, conveyance or other document or instrument in writing, judgments, and lis pendens referred to in the Land Registration Ordinance (Cap. 128) by which any parcels of ground tenements or premises in Hong Kong may be affected;
- any assignment, mortgage or legal charge or any other contract relating to or effecting the disposition of immovable property or an interest in immovable property (e.g. sale of property, mortgage over a property, etc.);
- a document effecting a floating charge referred to in section 2A of the Land Registration Ordinance (Cap. 128);
- oaths and affidavits;
- statutory declarations;
- judgments or orders of the court;
- a warrant issued by a court or a magistrate;
- negotiable instruments, such as promissory notes or bills of exchange (but excluding cheques that bear the words “not negotiable”);
- a contract entered into in Hong Kong for the employment of a Hong Kong employee, who is employed to work outside Hong Kong by a foreign employer (but excluding people who are migrating for employment, crew members of ships or aircrafts, and non-manual employees with a monthly wage of over HK$ 20,000) (Section 5(1) of the Contracts for Employment Outside of Hong Kong Ordinance (Cap. 78));
- arrival or departure cards relating to a person arriving in or departing from Hong Kong (Section 5(4)(b), 5(5)(a)(ii) and 5(5)(b)(ii) of the Immigration Ordinance (Cap. 115));
- plans, structural details, calculations, geotechnical plans, geotechnical assessments, geotechnical details and calculations, geotechnical reports, site investigation reports or ground investigation reports to be submitted to the Building Authority (Regulation 12(1) to (3) and (5) of the Building (Administration) Regulations (Cap. 123A));
- a form applying for a Hong Kong Identity Card (Regulation 4(1) of the Registration of Persons Regulations (Cap. 177A));
- notice of intended marriage to be filed with the Registrar of Marriages (Section 6 of the Marriage Ordinance (Cap. 181));
- documents relating to the re-registration of the birth of a legitimated person by the Registrar of Birth and Deaths (paragraph 1, Schedule of the Legitimacy Ordinance (Cap. 184));
- notice of transfer of ownership of a motor vehicle to be filed with the Commissioner for Transport (Regulation 17(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E));
- any application and all plans, explanatory guide, reports, analyses, calculations, specifications, details, supporting documentation and other information submitted to the Drainage Authority (Section 6 of the Land Drainage (Consent and Approval) Regulation (Cap. 446A));
- an arbitral award issued in accordance with the UNCITRAL Model Law (Section 67(1) of the Arbitration Ordinance (Cap. 609)); and
- various sections within Ordinances concerning electoral affairs (i.e. in relation to political elections).
In addition, the ETO also sets out specific proceedings in which electronic documents and signatures may not be used. These include court proceedings and those in front of certain tribunals and appeal boards.
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