Elisenda Fabrega: Rethinking Digital Signatures and Legal Consent

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Elisenda Fabrega

Revealed: Might 30, 2025 at 9:33 am Up to date: Might 30, 2025 at 10:14 am

by Ana

Edited and fact-checked:
Might 30, 2025 at 9:33 am

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For hundreds of years, signing an settlement has been carefully linked to expressing a transparent intention to enter into a proper dedication. Though the important authorized necessities have all the time been that consent should be knowledgeable, attributable, and verifiable, these have been usually taken without any consideration up to now, as handwritten signatures have been universally accepted as fulfilling these circumstances, besides in particular, uncommon conditions.

However, in in the present day’s world, the place expertise and digital codecs are a part of our day by day lives, the notion of consent and its three basic pillars generate uncertainty, as many individuals wrestle to totally assimilate the shift in how consent can now be mirrored by completely different codecs, not simply handwriting. This lack of knowledge, mixed with doubts about whether or not digital signatures will truly be acknowledged in courtroom, has contributed to the parable that solely handwritten signatures can create binding contracts.

The Phantasm of Ink: Authorized Myths vs. Digital Realities

Whereas this false impression will be simply debunked from a authorized standpoint primarily based on the content material of European Regulation 910/2014 (eIDAS), which explicitly states {that a} signature, regardless of if easy, superior, or certified, can’t be denied authorized impact solely as a result of it’s in digital kind, the sensible actuality stays much more complicated. In apply, the judicial system has at occasions proven a sure diploma of resistance to technological innovation, usually inserting extra belief in conventional types of proof with which they’re extra acquainted.

It’s for the above purpose that the certified digital signature, very like the handwritten signature, has tended to generate much less friction throughout the judicial system. This isn’t solely as a result of it’s legally equated with handwritten signatures, but in addition as a result of its creation includes the usage of a bodily {hardware} machine, which supplies folks a well-known feeling just like conventional signatures by involving one thing tangible within the signing course of, identical to utilizing a pen. 

Nonetheless, the necessity to receive a certificates, use a particular machine, and full a strict identification verify usually makes any such signature inefficient. Consequently, customers and organizations want extra user-friendly options similar to clicking an acceptance button, ticking a checkbox, scanning, or drawing a signature on a display screen.

You will need to spotlight that in these instances, though all digital signatures are legally acknowledged beneath eIDAS, the excellence between a easy and a sophisticated digital signature turns into important. Easy signatures current particular challenges when it comes to evidentiary worth as a result of, on their very own, it could be tough to show that the one who carried out the motion of signature was the meant one or that the act was carried out consciously and with full consciousness of its authorized implications. 

For example, a checkbox will be ticked by somebody apart from the legit proprietor of the pc machine, making it tough to hyperlink the signature to a particular particular person or to show the intent behind it.

Constructing Belief in Clicks: Strengthening Digital Consent Via Design and Proof

Subsequently, to enhance the evidentiary energy of a digital signature, it’s important to assist it with technical and procedural measures, as it’s designing an onboarding course of. This could information the person by clear steps during which the three authorized pillars of consent (being knowledgeable, attributable, and verifiable) are met and will be later demonstrated. 

For instance, the method ought to start by clearly informing the person in regards to the authorized implications of giving their consent. This will contain asking them to overview and settle for particular phrases, and explaining the aim behind accumulating their consent and, the place relevant, the explanations for requesting sure private knowledge. This primary step will assist be sure that the consent has been obtained after correctly informing the person, subsequently complying with the primary pillar.

Afterwards, as soon as the person has understood and accepted particular circumstances, linking such consent to a particular particular person and second in time turns into important. A great tool on this case is performing identification verification by a Know Your Buyer (KYC) process. This course of supplies duly documented affirmation of who the signer is and permits us not solely to confirm the identification of the particular person performing, but in addition to doc the circumstances beneath which the act was carried out.

Moreover, if this KYC is complemented by linking the motion to a digital pockets solely managed by the person and verifying this management by scoring assessments or by introducing further safety measures similar to multi-factor authentication, session integrity checks, and geolocation, a further layer of safety is added. All these steps will assist reduce the danger of impersonation and supply proof that the method was accomplished with out interruption or exterior interference.

A remaining step, or fairly a requirement that ought to be adopted all through the whole process, is to implement as many recording mechanisms as doable to make sure that all related data is translated into a transparent and comprehensible format. 

Digital Signatures vs. Handwritten: A Shift in Evidentiary Energy

That is notably necessary, as such data can later be introduced in authorized proceedings, making their rejection by a choose extremely unlikely. For example, instruments similar to timestamping and audit logs that seize related particulars like IP addresses and machine data won’t solely assist hint who carried out the motion, when, and beneath what circumstances but in addition reinforce the signature’s attribution and verifiability.

Primarily based on the above, it turns into clear {that a} easy signature will be strengthened by including safety measures, permitting it to achieve the extent of a sophisticated digital signature. Likewise, a sophisticated signature will be additional strengthened with extra safeguards, making the whole consent course of extra sturdy and legally dependable. Subsequently, this leads us to ask an necessary query: why will we as a society nonetheless place extra belief in handwritten signatures?

The reality is that handwritten signatures will be cast or copied, and their validation usually depends on subjective judgment. Our belief in them stems extra from behavior than from precise authorized energy. We’re accustomed to them as a result of they really feel acquainted, tangible, and extensively accepted. In distinction, a correctly structured digital signature supported by identification verification, timestamps, and safe and immutable data can supply clearer, extra goal, and tamper-resistant proof.

Wanting forward, it’s cheap to suppose that any such digital signature couldn’t solely match however even surpass the evidentiary reliability historically attributed to handwritten signatures. As digital instruments develop into extra acquainted and accepted, we could witness the start of a brand new customary, one not primarily based on appearances, however on the readability, traceability, and safety with which authenticity and intent will be demonstrated.

About The Writer

Elisenda Fabrega is the Common Counsel at Brickken, the place she leads authorized initiatives that bridge conventional legislation with the quickly evolving Web3 ecosystem. Famend for her experience in tokenization—notably the regulatory dimensions of real-world asset tokenization—she additionally participated within the European Blockchain Sandbox cohort. Past her position at Brickken, Elisenda is a sought-after speaker and educator, sharing her insights by numerous blockchain-focused programs and Grasp’s packages.

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