Are digital waivers legally binding?

Australia

Short answer: Yes – in most circumstances.

In Australia, the legality of an electronic signature is often contingent on the nature of the document being signed. For any contract to be legally enforceable in the country, it must meet five key criteria:

• Agreement between the parties: One party must offer a good or service that is explicitly accepted by the other party.
• Consideration: There should be an exchange of value, which could be money or something else.
• Capacity: All parties involved must have the legal capacity to enter into a contract. This means being of sound mind and of age. In the case of corporations, the person signing must be authorized to act on the company's behalf.
• Intention to Create Legal Relations: Both parties must intend for the contract to be legally binding.
• Certainty: The terms of the contract must be clear and definite so that the parties understand their respective rights and obligations.

If all these elements are in place, the contract is legally binding, whether it's in a written or electronic format. While written contracts are more commonly used and recommended for evidentiary reasons, electronic contracts are also enforceable, provided they meet the same criteria.

Electronic transactions and signatures in Australia are primarily regulated by the Electronic Transactions Act 1999 at the federal level, as well as by various state-level statutes. These laws broadly affirm the legitimacy of electronic transactions and signatures, as long as the parties involved have consented to this method.

New Zealand

Short answer: Yes

In New Zealand, the use of electronic signatures is regulated by the Contract and Commercial Law Act of 2017. This legislation generally affirms the legality and binding nature of electronic signatures. For an electronic signature to be deemed valid under this Act, it must fulfill specific criteria.

Firstly, the signer must clearly intend to sign the document electronically. Secondly, the electronic signature should be reliable for its intended purpose. Lastly, the recipient of the electronic signature should consent to its electronic format.

To be considered "reliable for the purpose," the electronic signature needs to meet additional conditions:

• It must be uniquely associated with the signer alone.
• It should be created under conditions that are fully within the signer's control, without any undue influence or coercion from another party.
• It should assure the integrity of the associated information or document.
• Any subsequent changes to the document after the electronic signature is applied must be easily detectable.

Canada

Short answer: Yes

In Canada, the legality of digital waivers is underpinned by both federal and provincial legislation. Federally, the Personal Information Protection and Electronic Documents Act (PIPEDA) legitimizes electronic signatures, equating their validity to that of traditional ink signatures, and thus, by extension, supports the legal standing of digital waivers.

On a more localized level, the Uniform Electronic Commerce Act (UECA), introduced in 1999, serves as the legislative framework governing e-signatures in seven provinces, while Quebec has its own law known as the "Act to Establish a Legal Framework for Information Technology."

These legal frameworks collectively ensure that a contract, including waivers of liability, cannot be invalidated solely on the basis that it's presented electronically. They stipulate stringent criteria for what constitutes a valid electronic signature, requiring it to be:

• Created under the full control of the signer,
• Capable of confirming the signer’s identity,
• Unique and distinctive to the individual, for instance, a generic “X” cannot be used,
• Protected by technology that can detect any alterations.

The conducive legal environment, coupled with the operational benefits, positions digital waivers as a viable, legally binding, and efficient solution for various sectors in Canada, adhering to the nation's broader digital government initiative and the evolving needs of modern commerce and activities

United States

Short answer: Yes

In the United States, the legal framework for the use of electronic signatures in commerce is mainly established by two key laws.

The first, the Electronic Signatures in Global and National Commerce Act (ESIGN) of 2000, is a federal statute that legitimizes electronic signatures in all 50 states for interstate and international business transactions. This Act equates the legal standing of electronic signatures with traditional written ones where federal law is applicable.

The second, the Uniform Electronic Transactions Act (UETA), was drafted in 1999 to align state laws concerning electronic signatures and record-keeping. Adopted by 47 states as well as Puerto Rico, the District of Columbia, and the U.S. Virgin Islands, UETA complements the federal ESIGN Act. When both acts are in effect in a state, ESIGN takes precedence.

Both ESIGN and UETA stipulate that:

• Electronic signatures can generally replace handwritten ones.
• Electronic signatures are admissible in court as long as the signer is fully informed, in line with standard contract law.
• Electronic documents cannot be dismissed in legal cases solely because they are in digital format.