Under Scots law, electronic signatures are legally valid and enforceable where the correct requirements are met. As with any legal tool, it is important to understand when an electronic signature is suitable and when a higher level of security may be more appropriate.

The legal framework in Scotland

The legal basis for electronic signatures in Scotland sits primarily within the Requirements of Writing (Scotland) Act 1995, alongside retained EU law under the UK version of the eIDAS Regulation. Together, these rules confirm that electronic signatures can meet statutory requirements for writing and signature in many situations.

It is important to note that Scots law does not treat all electronic signatures in the same way. The type of signature used can make a significant difference if the validity of a document is later questioned.

Simple electronic signatures

At the most basic level, a simple electronic signature may be used. This includes typing a name into a document, clicking an “I agree” button, or inserting an image of a handwritten signature into a Word document or PDF. These signatures are commonly used for low-risk documents such as customer registration forms, internal approvals, or routine business correspondence.

While simple electronic signatures are legally valid in principle, they carry limited evidential weight. If the authenticity of the signature is challenged, it may be difficult to prove who applied it and in what circumstances.

Advanced electronic signatures

For many commercial arrangements, an Advanced Electronic Signature, often referred to as an AES, offers a stronger level of protection. An AES must be uniquely linked to the signatory, capable of identifying them, and created using electronic means that remain under the signatory’s sole control.

In practice, this usually involves a secure e-signing platform that produces an audit trail. This can include dates and times of signing, IP addresses, and confirmation of the steps taken during the signing process. Under Scots law, this supporting evidence can be extremely helpful if a contract is later disputed.

Qualified electronic signatures

At the highest level is the Qualified Electronic Signature, or QES. A QES is issued through a qualified trust service provider and requires a robust identity verification process, often involving official identification documents.

In Scotland, a QES has the strongest legal effect and is treated as equivalent to a handwritten signature for all purposes. Where legislation requires a document to be “self-proving”, such as certain formal agreements, a QES can meet this requirement without the need for a witness.

Choosing the right level of signature

The choice of electronic signature should be guided by risk and potential consequences. For documents that are unlikely to be disputed, such as low-value agreements or routine administrative forms, a simple electronic signature may be sufficient.

However, where there is a realistic possibility that a document could be relied upon in court, a higher level of assurance should be considered. Non-disclosure agreements, supplier contracts, shareholder agreements, and high-value commercial arrangements all carry a greater risk profile. If a party later denies signing, a simple electronic signature may offer limited protection, whereas an AES or QES provides much stronger evidence.

Retaining supporting evidence

Where a simple electronic signature or an AES is used, it is sensible to retain supporting evidence wherever possible. Email correspondence, records of discussions, and confirmation messages generated during the signing process can all help demonstrate that the document was signed by the intended party.

While this does not offer the same level of protection as a QES, it can strengthen your position if a dispute arises.

When extra care is needed

There are situations under Scots law where electronic signatures may not be appropriate or may require particular care. Certain documents, depending on their nature and statutory requirements, may still require a specific form of execution. For high-value, unusual, or complex transactions, legal advice should be sought before signing.

Electronic signatures are a reliable and effective tool for Scottish businesses, provided they are used thoughtfully. Understanding the differences between simple electronic signatures, AES, and QES allows organisations to match the level of security to the importance of the transaction. This approach enables businesses to benefit from digital efficiency while maintaining appropriate legal protection.