Electronic Signature Under Thai Law
The legal framework for electronic signatures in Thailand is set forth in the Electronic Transaction Act B.E. 2544 (2001) of December 2, 2001, which came into effect on April 3, 2002 (the “Electronic Transaction Act” or “ETA.”) The ETA provides for several regulations aimed at supporting electronic transactions, and notably recognizes the validity of electronic signatures.
The ETA was created in response to the overwhelming use of telecommunication and electronic technology by the public, business sector and government agencies. This Act sets up guidelines for the use of electronic information and is intended to create credibility and reliability in the use of electronic information. The ETA, which is based on the UN Model Law on Electronic Commerce, also prescribes guidelines for the creation of electronic signatures as well as provisions concerning the validity and enforceability of the content of electronics information and electronic signatures.
How is electronic signature defined under the ETA?
Electronic signature is defined as any letter, character, number, sound, picture or other symbol created in electronic form for use in conjunction with electronic information for the purpose of showing the relationship between a person and electronic information with the aim of identifying the person who is the proprietor of the electronic information and in order to show that such person accepts the content given in such electronic information.
What is the legal status of electronic signatures?
Pursuant to Section 9 of the ETA, electronic signatures are given full legal effect, under certain conditions, including:
l The electronic signature is made by means of a process which can identify the person who owns the signature, and which can prove that the signature proprietor has confirmed his ownership of the message given in the electronic information; and
l Such process is considered to be duly reliable in terms of the objective of creating or sending the electronic information by taking into account the surrounding circumstances or the agreement settled by the parties.
What if the legal signature was created in a foreign country?
Section 31 of the ETA provides that an electronic signature created or used in a foreign country has the same legal effects as an electronic signature created or used in Thailand if the system used in creating or using this foreign signature is of the same level of reliability as the one provided under the ETA. The same Section also provides that in determining if the level of reliability is the same, international standards will be considered, as well as other relevant factors.
When is an electronic signature deemed reliable?
Under Section 26 of the ETA, an electronic signature with the following character is deemed to be a reliable electronics signature, and therefore admissible as evidence in legal proceedings:
l The data used for creation of the electronics signature has been linked to the person who owns the signature, and not to any other person as may be apparent from the circumstances.
l At the time of creation of the electronic signature, the data used for creation of the electronics signature is under the control of the owner of the signature only.
l Any modification made to the electronic signature since the time of its creation can be noticeable.
l In case of an electronic signature given for certification of completion and confirmation of a message, any modification made to the message since the time of giving the electronics signature can be noticeable.
What are the obligations of an electronic signatory?
Owning an electronic signature implies certain obligations, stated in Section 27 of the ETA, including the following:
l The signatory must exercise reasonable care to avoid unauthorized use of his signature creation data;
l The signatory must without delay, notify any person that may reasonably be expected to act on the basis of his signature or to provide services in support of the electronic signature when: (i) the signatory knows or should have known that the signature creation data has been lost, damaged, compromised, unduly disclosed or known in a manner inconsistent with their purpose; (ii) the signatory knows from the circumstances that there occurs a substantial risk that the signature creation data may have been lost, damaged, compromised, unduly disclosed or known in a manner inconsistent with their purpose;
l The signatory must also exercise reasonable care to ensure the accuracy and completeness of all material representations made by the signatory that are relevant to the certificate, when a certificate is used.