Electronic Signatures in Jordan

The rapid growth of the information technology has led to developments in all fields, especially in the field of utilizing the means of communication to obtain goods and services for the least effort, the lowest price and the shortest time. Electronic commerce and contracting are the most significant areas of usage of modern communication technology.

Several countries have enacted electronic transactions laws to regulate the legal framework for doing business online or for making contracts via electronic means of communication. It became crucial to govern their evidentiary power to make them evidence admissible before the courts.

Jordan was among those countries and the temporary Jordanian electronic transactions law No. 85 of 2001 was the beginning of recognition of the electronic signature which thereafter has been repealed and replaced by the Electronic Transactions Law No. 15 of 2015 which was published in the Official Gazette on 17 May 2015 and came into effect on the same date of publication (the “New Electronic Transactions Law”). Broadly speaking, the New Electronic Transactions Law draws on the UNCITRAL Model Law for Electronic Signatures.

Definition of Electronic Signature

Electronic Signature is defined under the New Electronic Transactions Law as information in the form of letters, numbers, codes, symbols, or other and which is electronically, or in any other similar mean, included in, affixed to, or associated with an electronic record. It is used to authenticate the identity and unique usage of the signatory and differentiate him from others.

The electronic signature according to its definition is characterized by a number of characteristics, the most important of which is that the Jordanian legislator did not limit the forms of the electronic signature to a certain form in order to leave the door open for including any future developments in the field of electronic transactions, therefore, the electronic signature might take different forms of numbers, letters, signs or symbols. The electronic signature also should determine the signatory’s character and distinguish it from the others. In addition, the electronic signature should indicate the satisfaction of the signatory on the electronic document.

Types of Electronic Signature

The Jordanian legislator differentiated between three types of electronic signatures, which are the protected electronic signatures, the authenticated electronic signatures and the ordinary electronic signatures.

1. Protected Electronic Signatures

In order for an electronic signature to be qualified as protected, the following requirements should be met:

1. It is uniquely linked to the signatory
   This condition requires that the electronic signature to be distinctive to identity the signatory in order to be related specifically to its owner, so that the electronic signature identifies the person alone and when the signature is issued, the same signature of someone else cannot be considered.
2. It is capable of identifying the signatory
   We are of the opinion that having the electronic signature uniquely linked to the signatory would also meet the condition the electronic signature to be capable of identifying the signatory.
3. The private key shall be under the control of the owner at the time of the signature
   In addition to the legal requirements for the electronic signature to establish its validity as evidence, there is also a technical feature that should be observed in order to be in line with the nature of e-commerce systems. The electronic signature should be created using means that are under the signatory’s sole control, so the owner of the electronic signature is the only one who has it.
   
   The New Electronic Transactions Law has defined the private key as a “symbol that is used by a person to set up an electronic signature in an electronic transaction or information message or an electronic record”.
   
   Based upon the above, the private key to sign must be under the control of the signatory at the time of the signature. Otherwise, it cannot be claimed that the signature is his if the private key went out of his control, unless it has been proved that the private key is not under his control at the time of the creation of any act.
4. It is linked to other electronic data in such a way that any alteration to the said data can be detected
   To guarantee the safety of the executed document and to avoid any amendment thereto, the electronic signature must be connected materially with the written instrument, the signature and the content of the instrument should not be separated from each other.

2. Authenticated Electronic Signatures

Electronic signatures will be deemed authenticated if the above-mentioned conditions of the protected electronic signatures are fulfilled in addition to being certified by any of the following institutions:

1. An electronic authentication party licensed in Jordan.
2. An accredited electronic authentication party.
3. Any governmental body legally authorized by the Council of Ministries whether it was a ministry, public official institution, public institution, or municipality provided that it fulfills the requirements of the Telecommunications Regulatory Commission.
4. The Ministry of Digital Economy And Entrepreneurship.
5. The Central Bank of Jordan with regard to the banking or financial electronic operations.

It can be noted the Jordanian legislator authorized independent and neutral institutions to be entrusted with the authentication power, the matter which gives dealing with authenticated electronic signatures more credibility.

3. Ordinary Electronic Signatures

The electronic signature that is not protected nor authenticated, will be classified as an ordinary electronic signature and will have the same evidential weight of an ordinary document between the parties to the electronic transaction.

The Legal Effect of The Electronic Signature in The Proof and Means of Protecting it

An ordinary electronic signature will have the same evidential weight of an ordinary document between the parties to the electronic transaction. In the event that an ordinary electronic signature is denied, the party who seeks to rely on such ordinary electronic signature will be required to prove its validity. A protected electronic signature will carry the same evidential weight of an ordinary document and can be relied on as evidence by the parties to the electronic transaction. An authenticated electronic signature will carry the same evidential weight of an ordinary document and can be relied on as evidence by the parties to the electronic transaction, in addition to third parties. It is worth noting that an electronic record that does not carry an electronic signature, will have the same evidential weight of an unsigned document.

Transactions that are not subject to the New Electronic Transactions Law

Notwithstanding the above, there are certain documents that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management that are of specific actions, including:

1. Establishing and amending a will.
2. Establishing “Waqf” and amending its conditions (“Waqf” relates to an individual forfeiting profit accumulated from a property they own to a charity).
3. Transactions related to movable or immovable properties that require registration, including associated powers of attorney and title deeds and establishing “real rights” other than lease contracts.
4. Powers of attorney and transactions relating to civil status.
5. Notices relating to cancel or rescind water, electricity services and life and health insurance contracts.
6. Roll of actions and pleadings, judicial notices and court decisions.
7. Securities, unless those of special regulations as issued by the competent authorities pursuant to Securities Law in force.