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1 ADMISSIBILITY OF ELECTRONIC SIGNATURE IN EVIDENCE AND IT S LEGAL EFFECT; A COMPARATIVE STUDY IN JORDANIAN LAWS by Nehad Alhussban Supervisor Dr. Fayyad Alqudah This Thesis was submitted in Partial Fulfillment of the Requirements for the Master's Degree of Intellectual Property Faculty of Graduate Studies The University of Jordan December 2005

2 i THE UNIVERSITY OF JORDAN AUTHORIZATION FORM I, Nehad Alhussban, authorize the University of Jordan to supply copies of my dissertation to libraries, establishments or individuals on request. Signature: Date:

3 ii This Dissertation (Admissibility of Electronic Signature in Evidence and it s Legal Effect; A Comparative Study in Jordanian Laws ) was successfully defended and approved on December, 1, Examination Committee Signature Dr Fayyad Al qudah (Supervisor).. Associate Professor of Commercial Law Dr Qais Mahafzah (member) Assistant Professor of Commercial Law Dr Basem Melhem (member)... Assistant Professor of Commercial Law Dr Abdullah Khashroum (member).... Associate Professor of Commercial Law (University of Mou ta )

4 iii DEDICATION To my Mum, Dad & hamad

5 iv ACKNOWLEDGMENTS I would like to express my gratitude to all of the staff of the faculty of law especially the staff of the department of Intellectual Property. I would like especially to thank my supervisor Dr. Fayyad Alqudah for his comments, encouragement and constructive remarks, which helped so much during the writing of this dissertation. I would like, in particular to give special thanks to Dr. Tarqe Hamouree, Dr Qais Mahafzah and Dr. Omer Aljazee for their critical eye and constrictive remarks through teaching me the core modules which help so much in the preparation of this dissertation. Many thanks are also due to Mr Emad Salamh for his help and support during the writing up of this dissertation.

6 v Authorization Form Examination Committee Dedication TABLE OF CONTENTS page i ii iii Acknowledgments iv Table of Contents v Abstract ix Introduction 1 Chapter One : Electronic Signature Overview Definitions of Signature LanguageDefintions The Manuscript Signature Definitions of Electronic Signature Types of Electronic Signature in general Digital Signature Types of Digital Signature Symmetric cryptography Asymetric cryptography (PublicKey Cryptography) Mechanism of Digital Signature Liability of Certification Authority Legal Effects of Digital Signature Advantages and Disadvantages of Digital Signature Biometric signature A manuscript signature that has been scanned 30

7 vi Typing a name on an electronic document Clicking the I accept button placed on a website Types of electronic signature in Jordanian Laws Requirements of electronic signature to meet handwritten signature Functions of Signature Requirements of electronic signature.. 37 Chapter Two: Admissibility Of Electronic Signature Overview The admissibility of electronic signature where the law requires a written document for 42 evidence and where a written document is not required Jordanian Law of Evidence Civil Cases Commercial Cases Financial Papers Law Banking law no 28 for the year Electronic Transactions Law The legal effect of parties' Agreements Electronic Data Interchange (EDI) Advantages and disadvantages of EDI Agreements between abank and its clients Jordanian judiciary perspective Legal consequences of electronic signatures where the sender denies their signature or 60 the recipient does not trust in the Certification Authority. Chapter Three: Legal Effects Of Electronic Signature General legal effects of electronic signature 63

8 vii 3.2 Legal effects in protecting computer programs by using electronic signature to prevent 64 access or copying Software Software Piracy Shareware Data Legal effects of electronic signature in transactions which are not covered under 69 Jordanian Electronic Transactions Law CONCLUSION REFERENCES. 77 ABSTRACT 86

9 viii Admissibility of Electronic Signature in Evidence and it s Legal Effect; Comparative Study in Jordanian Laws by Nehad Alhussban Supervisor Dr. Fayyad Alqudah ABSTRACT This dissertation points out definitions of electronic signature, its types, especially digital signature. It also explicates the requirements of electronic signature which qualify it as handwritten one by searching through Banking Law, Financial Papers Law, Jordanian Law of Evidence and Electronic Transactions Law. This dissertation explains also how to create a digital signature by the use of symmetric and asymmetric cryptography. This dissertation identifies Jordanian Laws which provide admissibility to electronic signature. It also discuses law which stipulate pre-agreement in order to recognize electronic signature as admissible. Moreover, it points out requirments of agreements which give electronic records conclusive evidence and the legal effects of these requirements. The study bases on analyzing articles of Jordanian Laws which regulate the admissibility of Electronic Signature. It also compares and contrasts between the provisions of Jordanian laws which are related to electronic signature. Additionally, limited courts' opinions in this filed shall be studied. The study has been reached many of results and recommendations; most important of them as the follow :

10 ix The Jordanian Law of evidence gives the electronic signature admissibility without conditioning authentication. The signatory can prove that neither he nor ask others to send it. This law contradicts with Jordanian Electronic Transaction Law which conditions authentication of electronic signature in order to be qualified as admissible. The Jordanian Electronic Ttransactions Law specialized in electronic transactions. Therefore, the priority of dealing with such transaction should be according to this law. The legislator should have coordinated between laws which deal with the same matter. The Jordanian laws recognize the admissibility of electronic signature in evidence. However the Jordanian Electronic Transactions Law has not organized how to create an electronic signature. It hasn t also organized the certification authorities nor organized the authentication certificate. Additionally, it leaves implementing them to regulations that haven't been issued. The Jordan Electronic Transactions Law should have regulated how to create electronic signatures. Moreover. It should have regulated certification authorities and the technical conditions of these authorities in order to provide authentication services of electronic signature. The law should also regulated mechanism to keep a spare of the private key in the event of emergency such as the death of the key holder. And the spare can be used after official approval from, let say, the court.

11 1 INTRODUCTION Paper has been for centuries regarded as the only means for recording and carrying information. It has been considered a safe and reliable environment for protecting and evidencing the rights and obligations of commercial parties as well as any other rights and obligations. The Internet was designed by the United States Department of Defense as a military and scientific computer network in Rapid technological development and the global character of the Internet necessitate an approach which is open to various technologies and services capable of authenticating data electronically. The Internet was perceived as a suitable new medium to perform commercial transactions as well as government transactions. Electronic signatures will be used in a wide variety of circumstances and applications, resulting in a wide range of new services and products related to or using electronic signatures. Jordanian Telecommunication Company announced for a computer and net for every home. Universities are going to be electronic. Jordanian public sector has fifty one websites. 1 In the near future all governmental and private activities will be performed electronically The Lack of confidence in the legal effect of electronic commerce and in the evidentiary value of electronic documents is considered the key hurdle facing the development of electronic commerce. 1 -National Information Center <

12 2 The most commonly known form of electronic signature is the "I accept" icon which appears on websites. It is used billions time a day, and will continue to be utilized by people that are not even conscious of the legal consequences that they are entering a binding contract. In fact the function of this icon is to sign a document electronically which is as admissible as the conventional handwritten signature. The ignorance of the functionality of this icon and to certain extent because of the linguistic barrier, clicking on such an icon leads into catastrophic legal results. Legislation relating to electronic signature has been introduced and passed in most states of the world and those who have not passed a law till now will introduce Legislation in due course. Jordanian laws give legal recognition to electronic documents and Electronic Signatures. They do not deny their evidentiary value on the sole ground that they are in an electronic form. However, this recognition depends on agreements between parties who agreed to apply the Jordanian Electronic Transactions Law on their electronic transactions or Transactions that are approved by a Governmental Department or an official Institute. The above law provides that the recognition of electronic signature relies on authentication. Authentication, nevertheless, requires a trust third party; Certification Authority. Jordanian electronic transactions law does not specify the certificate authority and left the matter to regulation that hasn t been issued. On the other hand, there are laws e.g. Banking Law, Financial Papers Law which give legal recognition to electronic documents and electronic signatures in Evidence with out pre- agreement between parties to use electronic means. However, these laws apply on specific transactions cases. The Jordanian Law of Evidence gives legal recognition to as evidence unless the alleged sender proved that neither they nor authorize others to send it.

13 3 What are the means of evidence to prove or disprove a dispute over electronic transactions? The admissibility of electronic signature is recognized by more than one Jordanian law. However, there is a conflict between the Jordanian Electronic Transactions Law and Jordanian Law of Evidence in terms of the admissibility defined in each. The former law gives admissibility to the authenticated signature, while unauthenticated signature does not have any admissibility. The latter law, on the contrary, does not stipulate authentication in order to qualify the signature as admissible. Moreover, the sender under this law can deny that he sends the message nor he authorized others to do so. Jordan is pursuing an electronic government strategy where all services will be performed electronically. Public corporations have fifty one websites. The private sector e.g. banks, universities, companies etc. has already built an electronic infrastructure. For instance students of some universities have the facilities to register online and to make online applications. Some Ministries such as Ministry of Education, Ministry of Justice have already applied the electronic system. However, Jordanian Electronic Transactions Law shall not apply to pleading, arguments, judicial notices and courts decisions. A signature may alleviate evidentiary burdens that may arise when enforcing a contract, but enforcing a contract involves much more than evidence of the existence and contents of a contract. E-commerce has opened the possibility to engage in cross border business with a low value per transaction. Even if one has the authenticated identity of one's contracting party, it may still be too complicated or expensive to commence legal proceeding against a party. A signature does not in itself result in compliance with

14 4 contracts and legal rules. The security dimension of signature only makes sense if one is really willing to embark upon enforcement. Enforcement in the internet environment isn't something that can be done on an ad hoc basis. The territorial division of the law hampers enforcement in the borderless internet environment: each country has its own system for determining and administering law. The use of digital cryptography technologies has grown significantly in recent years; in fact, there is general worldwide consensus that global electronic commerce and corporate infrastructures cannot be safely and reliably maintained without them. Digital signatures represent a giant step forward. Like a written signature, a digital signature guarantees that an individual sending a message or signing a contract really is who he or she claims to be. Compared to how networks and online retailers identify users today, it is the difference between a pseudonymous user name and a real, flesh and blood person. This dissertation identifies Jordanian Laws which provide admissibility to electronic signature. It also discuses law which stipulate pre-agreement in order to recognize electronic signature as admissible. Moreover, it points out requirments of agreements which give electronic records conclusive evidence and the legal effects of these requirments. This dissertation points out definitions of electronic signature, its types, especially digital signature. It also explicates the requirements of electronic signature which qualify it as handwritten one by searching through Banking Law, Financial Papers Law, Jordanian Law of Evidence and Electronic Transactions Law. This dissertation explains

15 5 also how to create a digital signature by the use of symmetric and asymmetric cryptography. The methodology of this study will be based on analyzing articles of Jordanian Laws which regulate the admissibility of Electronic Signature. It also compares and contrasts between the provisions of Jordanian laws which are related to electronic signature. Additionally, limited courts' opinions in this filed shall be studied. This dissertation is divided into three chapters: Chapter one deals with electronic signature. It is divided into three sections: section one covers definitions of electronic signature. Section two explicates types of electronic signature. Section three discusses requirments of electronic signature which qualify it to be as admissible as handwritten signature. Chapter two discusses admissibility of electronic signature. It is divided into three sections. Section one discusses the admissibility of electronic signature where the law requires a written document for evidence and where a written document is not required. Section two points out the legal effect of parties' agreements. Section three illustrates the legal consequences of electronic signatures in case that the sender denies sending the document and in the event that the recipient does not trust the Certification Authority. The three main sections above discuss also the pertinent Articles in the Jordanian law of Evidence, Financial Papers Law, Banking Law and Electronic Transactions Law.

16 86 Jordanian Electronic Transactions Law No. 85 of 2001, published in the official Gazette Issue (4524), p Jordanian Law of Evidence No.30 of 1952, published in the Official Gazette, Issue 1108, p.200 date Jordanian Financial papers Law No 76 of 2002 published in the Jordanian Gazette, Issue 4579, P 6218 date Internet Cambridge Advanced Learner's Dictionary. Online electronic version. Retrieved on 21 July 2005, from < Copyright Treaty, World Intellectual Property Organization. Retrieved on 22 July 2005, from < Court of Cassation, Decision No. 4581/2003, adaleh, 2004, < Court of Cassation, Decision No. 849/1996, adaleh < Court of Cassation, Decision No. 814/2004, Adaleh < EU Electronic Signature Directive of 1999/93. Retrieved on 09 July 2005, from <

17 87 D. Roman & H. Laursen, and U. Keller, eds., Web Service Modeling Ontology, WSMO Working Draft, 2004,Retrived on 21 July 2005, from < Instructions for registering, depositing and settling securities of 2004, Securities Depository Centre, Amman, Retrieved on 02 August 2005 from < Johnson, Kate Presentation (2002) on Digital Signature, 2002, p4. Retrieved on 23 August 2005, from < UNCITRAL Model Law on Electronic Commerce with Guide to Enactment of Retrieved on 21 July 2005, from > UNCITRAL Model Law on Electronic Signature of Retrieved on 20 July 2005, from < Wikipedia encyclopedia (electronic version). Retrieved on 21. July2005, from <

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