Hong Kong: E-signatures and paperless contracts

In Hong Kong, employers are increasingly turning to the use of electronic signatures (or "e-signatures") as a more efficient means of entering into binding employment contracts, particularly as they think about ways to improve and streamline their recruitment processes. E-signatures take the form of either a typed name or digitalised image of a handwritten signature, or a unique digital "fingerprint" created using bespoke software. E-signatures are valid and enforceable in Hong Kong provided they comply with the requirements set out in the Electronic Transactions Ordinance:

• the e-signature must be attached to, or logically associated with, the electronic message;
• the e-signature process must be reliable as is appropriate given the purpose for which the signature is required; and
• the recipient must consent to the signatory using an e-signature.
  
   

There are no express requirements for the e-signature to be in a certain form or format.

If the employment contract involves any government entity, the e-signature must also be supported by a recognised digital certificate.

Actions for employers

There are a number of practical considerations employers should bear in mind before they leave behind the world of paper-based contracts:

• In some jurisdictions in South and Southeast Asia, electronic documents carry less evidentiary weight in a court of law than a traditional hard copy. Employers should therefore consider whether they are likely to need to rely on its terms in court in such a jurisdiction.
• The employer should be able to satisfy itself that the signature adequately identifies the signatory and gives sufficient indication of the signatory's approval of the information to which it relates. Employees could be asked to undergo a secure verification process.
• Employers should ensure that their e-signature systems are sufficiently reliable and secure, either by requiring the employee to answer security questions to access the offer letter or, ideally, by using a system that employs public key/private key technology, which effectively turns a paper-based signature into an electronic "fingerprint".
  
   

Author: Helen Beech, Hong Kong