On the legal status of digital/electronic signatures in Bangladesh

The government of Bangladesh has been digitising and automating different systems with the aid of technology to fulfil the vision of becoming a Digital Bangladesh. In that vein, the use of digital signatures in various sectors is gaining significant momentum. Recently, the proposed amendment of the Evidence Act of 1872 also incorporated the admissibility of digital signatures which would be a landmark in legal history.

The legal recognition of digital signatures, also referred to as electronic signatures or e-signature in the context of Bangladesh primarily comes from section 7 of the Information & Communication Technology Act, 2006 which articulates that any information is authenticated by a digital signature affixed in the prescribed manner of any law that contains provisions relating to such authentication. The terms digital signature and electronic signature are used interchangeably in most instruments relating to the subject. Besides the ICT Act of 2006, which acts as the primary legislation dealing with digital/electronic signatures in Bangladesh, the Information Technology (Certifying Authority) Rules 2010; the National Information and Communications Technology Policy 2018; and the Certification Practice Statement published by the Office of the Controller of Certifying Authorities (CCA) also contain provisions relating to the matter.

The ICT Act defines "digital signature" in section 2(1) as data in an electronic form that is related to any other electronic data directly or logically and can satisfy certain conditions for validation of the signature.

Further in section 2(20), the Act provides specifications for a secure signature generating machine or technology under section 17, which provides that a digital signature may be verified if it was unique to the person affixing it during the time it was affixed, if it is capable of identifying the person who affixed and if it was created under the sole control of the person affixing it. However, the provision also entails that any alteration to the electronic record relating to the digital signature would invalidate its verification.

According to Section 36 of the ICT Act, an electronic/digital signature can only be used in Bangladesh if an electronic signature certificate is obtained from a certifying authority (CA). Bangladesh currently has six licensed Certifying Authorities (CAs) working to create awareness about the significance and advantages of digital signatures. An individual is required to open an account with any of the CAs before subscribing to any electronic signature service. Again, certain documents and agreements cannot be signed or executed electronically in Bangladesh as they require a thumb impression along with a "wet signature" according to the provisions of the Stamp Act, 1899.

Acceptance of digital signatures by public sector entities is yet a debatable topic. While the laws of Bangladesh do not provide any rigid requirement or restrictions for using digital or electronic signatures while dealing with government entities, it does articulate that the government and its agencies have no obligation to accept documents in an electronic form (section 11). In addition, the ICT Act provides the power to make rules in respect of digital signatures to the Government of Bangladesh concerning its type, manner and format of affixation, control, processes, and procedures to ensure adequate integrity, security, and confidentiality of the documents, or any other matter relevant to the legal effect of digital signatures (section 12).

Although the use of digital signatures is increasing notably, the laws relating to it are yet to be expanded to gain public reliability. Most students and freelance workers remain hesitant to use digital signatures for fear of breach of privacy and document abuse. Hence, addressing the public unease with proper interpretation of the laws relating to digital signatures is a pathway to mainstreaming the use of digital/electronic signatures in Bangladesh.

The writer is a Student of Law, BRAC University.