"As the years pass, technological progress enables the development of more and more digital channels for performing various actions. Accordingly, over the years, the existing trend to move to digital processes and enable the execution of operations and services, both public and private, has been strengthened over the years .This directive is intended to assist and support government ministries in making the transition from the physical world to the digital world, while managing risks and fulfilling the required purposes. This is done both in the framework of formulating arrangements related to government and public services, such as online submission, and in the framework of formulating arrangements that apply to the private market, such as the regulation of a product created in the digital world (hereinafter: "Digital Arrangements").
- The advisor's guidance anchors the basic principles on the basis of which a digital arrangement must be examined and formulated. First, it establishes a principle of functional equivalence that requires analyzing "the purposes and uses of the traditional requirement from the physical world, and determining how these goals and uses can be realized in an electronic environment.The directive further adds in this regard that "when applying the principle of functional equivalence to an arrangement that is being formed, it is necessary to examine what are the purposes and uses that the arrangement is intended to achieve and not the manner in which they are applied in the physical world." Second, the Directive establishes the principle of non-priority, which states that "the formulation of a digital arrangement will be carried out, as a rule, in light of the principle of non-priority, according to which the legal validity or admissibility of an electronic document or service will not be revoked merely because it is electronic. At the same time, it should be clarified that the legal validity of a document, signature or any other component, which was drafted electronically, can be revoked for other reasons, which originate in legal determinations, or by some other limitation.It was also established that the principle of technological neutrality was established , according to which "it should be strived that a digital arrangement should not prefer, as far as possible, one technological means over another, if both fulfill the uses and goals of the same arrangement."
- The directive instructs the governmental authority on how to interpret an existing law in a way that digital arrangements can be implemented, and relates, inter alia, to the requirements of "writing", "original document" and "signature", which are enshrined in existing legal provisions. In this sense, it is in line with the legislature's desire to adapt existing legislation to today's technological developments.
Electronic signature as a distinctly personal act
- Already at the beginning of our discussion, we noted that the courts considered the signing of a promissory note to be a "clear personal act", which constitutes a special discretion that attests to an obligation to take a promissory note, since, in contrast to signing a contract, "a promissory debtor may owe a debt to a proper holder, even if he did not receive the counter-consideration that was promised to him" (the Spitzkopf case and see also Civil Appeal 537/89 Ramtex in the Weaving Appeal v. Rainbow Window Fashion Inc. Mo(4) 573 ((1992)).
As a rule, an electronic signature fulfills the foundations of discretion and identification (see the explanatory notes to the Electronic Signature Bill), and it cannot be said that it cannot amount to a "distinctly personal act". Moreover, there is no such claim on the part of the respondent.
- It seems to me that there is no difference between the personal aspect of the signatory physically (whether in his handwriting, in the seal or in any other manner recognized by law), and the signer himself graphically on a computer screen by means of an electronic signature (as the applicant is in the habit of signing her clients today, see the discussion paragraph, p. 4, line 26, and as is done today as a matter of routine in a large number of cases). Both can be considered a distinctly personal act, and can even be seen as being consistent with the wording of Form D1 of the Execution Regulations.
Hence, in the narrow sense of the purpose of signing a deed - the performance of a distinctly personal act, an electronic signature can be viewed as a signature on a deed for all intents and purposes, in accordance with the limitations set by case law, such as when we are dealing with a signature that is under the exclusive control of the signatory.