Earlier this year, MauSign CA, a licensed certification authority, was set up at the National Computer Board for the issuance of digital certificates to facilitate the verification of identities between users in an electronic transaction, including the use of electronic signatures. In the same breath, the National Computer Board (Certification Authority) Regulations 2021 were passed to regulate the functioning of MauSign CA.
Interest in electronic transactions in Mauritius was greatly fuelled by the COVID-19 pandemic, with companies scrambling to find secure digital solutions overnight to execute documents and process transactions electronically. Lockdown and social distancing measures resulted in “wet ink” signatures becoming unworkable, leading to the increasing use of electronic signatures. This is likely to have pushed the government to consider the implementation of a quasi-public service such as MauSign for the execution of electronic transactions.
Despite the Electronic Transactions Act 2000 (the Act) having been around since 2001, with certain provisions being proclaimed as late as 2010, it remains largely untested and, therefore, somewhat obscure.
The Act clearly provides for the effectiveness, validity and enforceability of electronic signatures but remains silent as to the degree of effectiveness, validity or enforceability of different types of electronic signatures (see below). From a commercial perspective, this begs the question – why would a business invest in a licence for the creation of digital signatures if all electronic signatures, even those created using a generic software, bear the same degree of validity in the eyes of the law?
Before we answer this question, we need to look at the different types of electronic signatures that are provided for under the Act.
- An electronic signature is one which is executed or adopted by a person with the intent to sign an electronic record. It is attributable to a person where it is the act of that person.
- A secure electronic signature, on the other hand, is one which may be verified through a commercially reasonable security procedure agreed by the parties. It is unique to the person using it and is capable of identifying such person. It is also created under the sole control of the person using it and is not capable of being changed without rendering the electronic record invalid. This type of secure electronic signature gives rise to a legal presumption that the signature is of a person to whom it correlates and that it was affixed with the intention of signing or approving the electronic record.
- A digital signature requires the use of a private key, i.e. an encryption and decryption method, for the signature.
- A secure digital signature is one created pursuant to a certificate from and within the operational framework of a licensed certification authority. Currently, there are only two licensed/recognised certification authorities in Mauritius: eMudhra and MauSign CA.
Secure digital signatures provide a higher degree of security than other types of electronic signatures but, since the law provides for the effectiveness of all electronic signatures, the decision to use secure digital signatures and licensed forms remains a balancing exercise between the desirable level of security and the cost considerations for a business.
Nonetheless, it is heartening to see that the legal framework has been adapted to promote the use and enforceability of electronic signatures, with articles 1316-2 et seq. of the Civil Code Mauricien being amended to specifically provide for the validity of electronic records. Further, in the context of the modernisation of the Registrar General’s department into an eService organisation, the Registration Duty Act 1804 was amended to include an electronic signature in the definition of “signature”.
There remain a few categories of documents which do not fall within the purview of the Act and these include wills, testaments or other prescribed documents in the law. It is also customary for court pleadings and affidavits to be executed in wet-ink signatures, despite the use of an online e-judiciary system for the Commercial Division of the Supreme Court. It is therefore always prudent to keep an eye out for specialised legislation which renders a wet-ink signature mandatory for certain types of documents.