It is expected that electronic signature will be increasingly used in the awake of the COVID-19 pandemic and the resulted social distancing measures imposed by governments and implemented by the different entities.
E-signature is recognized in Egypt since 2004 with the issuance of Law No. 15/2004 on the Electronic Signature and the Establishment of the Information Technology Industry Development authority (“E-signature Law”) and its Executive Regulation issued by virtue of Communication Minister’s decree No. 109/2005 (the “Executive Regulation” or “ER”).
The E-signature Law gives the electronic signature the same evidentiary weight as ‘wet ink’ signature if it fulfills a number of conditions and technical requirements. The law also established the Information Technology Industry Development authority (“ITIDA”) to be responsible for, inter alia, for licensing local and foreign e-signature certificate service providers (“CSP”).
Admissibility of e-signature in courts
The E-signature Law and the Executive Regulations envisages that only secured signatures that are based on qualified certificates and created with security requirements are enforceable and admissible before Egyptian courts and will be granted legal functional equivalence to a wet ink signature on paper. The same applies on e-writing and e-documents.
A qualified e-signature shall fulfill the following conditions:
- The electronic signature must be attributable to the signatory exclusively.
a. This requires that the e-signature be created through a secured and encrypted system and be authenticated or attested by an accredited licensed CSP.
- The signatory must have an exclusive control over the e-signature intermediary.
b. This requires that the signatory must possess the private encryption key.
- Any changes or amendments to the e-signature must be detectable.
c. Such detection will be through using the public and the private key encryption technology or verification of the e-signature authentication certificate.
Other forms of electronic signature which do not meet the above requirements will not be admissible before courts and will not be granted equivalent legal evidentiary weight as a wet ink signature on paper. There are only two CSPs in Egypt accredited by ITIDA; namely Misr for Central Clearing, depository, and Registry (MCDR) and The Egyptian Company for Digital Signature & Information Security SAE (Egypt Trust).
The E-Signature Law the does not contain a “party autonomy” provision to enable the parties to a particular electronic transaction to establish a framework as between themselves of how they would authenticate each other.
Limitation on using e-signature
The E-signature law provides that qualified electronic evidence can be used in civil, commercial and administrative dealings in general; it does not set out documents/transactions that are not suitable for e-signature. This is unlike other counties in which it is provided explicitly that certain matters are excluded such as powers of attorney, documents concerning real property or personal law such as marriage, divorce and wills, or documents which legally requires notarization and attestation.
However, one should be careful, electronic signatures are not always appropriate. It is not market practice in Egypt for governmental entities to accept documents executed using e-signatures for registration or filling requirements. Some documents that need to be registered or otherwise lodged with a government body are required to have wet ink signatures. This includes for example some documents lodged with the General Authority for Investment and Free Zones (GAFI) and the Financial Regulatory Authority (FRA) for corporate matter.
Burden of proof – The Court of Cassation’s new rule
The Egyptian Court of Cassation has laid down a new principle which is considered to be a turning point for reliability of electronic evidence in courts.
The Court of Cassation held on a recent judgment, issued on March 2020, that a party contesting the authenticity of an e-mail must initiate a forgery claim rather than merely deny the authenticity of the e-mail thereto. This means that in the event of a dispute, the party challenging the electronic document shall bear the burden of proof. A document shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the qualification requirements under the law.
Forgery procedures under the Egyptian Evidence Law are complex and lengthy and, in case of failure, the claimant may be ordered to pay a civil fine as well as possible damages. The court will usually appoint a technical expert to verify the authenticity of the e-signature.