Enforceability of Legal Documents and the Role of Electronic Signatures in Thailand

Currently, the enforceability of legal documents has significantly evolved with advancements in technology. In Thailand, the Civil and Commercial Code outlines specific requirements for legal documents, highlighting the necessity of written agreements for various contractual obligations. The Electronic Transaction Act (ETA) further recognizes the validity of electronic documents and signatures, enabling parties to create binding agreements through electronic means. This article explores the enforceability under Thai law, the implications of electronic transactions, and the distinctions between traditional and reliable electronic signatures, helping businesses and individuals understand their rights and responsibilities in this changing legal landscape.

1. Enforceability of Legal Documents

The Thai Civil and Commercial Code requires legal documents to be made in certain ways to make them enforceable. Such requirements depend on the level of their importance as follows:

1. Must be made in writing;
2. Must be made in writing and signed by the responsible party;
3. Must be made in writing and signed by both parties; and
4. Must be made in writing and signed by both parties and registered with the registrar.

For the sake of clarity, business operators usually make the agreement in writing to have the evidence of agreements, even though such an agreement may not be required to be made in writing under the law (which is a good practice).

2. Electronic Transaction Act (“ETA”)

2.1 Electronic Legal Document

Section 7 of the ETA states that “information shall not be denied legal effect and enforceability solely on the ground that it is in the form of a data message”.

Therefore, the agreement between the contractual parties can be made via electronic means and is validly bound between the parties. Examples of agreements made via electronic means include email, mobile SMS, LINE chat, FB Chat, etc. Agreements made via electronic means can be enforced under section 7 of the ETA and, thus, considered as if it were made in writing as mentioned in item 1 (a) above.

2.2 Electronic Signature

As mentioned in item 1 (b) – (c) above, the law requires certain types of documents to be signed by the contractual parties; thus, the ETA accommodates such requirements in section 9 (e-signature) and 26 (reliable e-signature) as follows:

2.2.1 E-signature under section 9 of the ETA

The contractual parties can use their e-signature to sign the agreement (whether a hard copy document or an electronic document). The e-signature must have components as follows:

1. Can identify a person who made the signature;
2. Can identify the purpose of the message (e.g., lease, purchase, mortgage, etc.);
3. Use a reliable method for signing, such as having a data security system, evidence, a witness, or a third-party certification.

The ETA does not require a specific method to make an e-signature, so new technology can be implemented, as long as it complies with the above requirements. The examples of valid e-signatures are as follows:

1. Typing the name in the last part of the email;
2. Ordering products via chat application whereby the user must log in through username and password (logging in means there is a signing name via electronic means); and
3. Paste the signature picture (crop the signature as a photo and paste it in the document) in the document.

2.2.2 Reliable E-signature

The following E-signature is considered a reliable E-signature:

1. The signature creation data are, within the context in which they are used, linked to the signatory and to no other person.
2. The signature creation data were, at the time of signing, under the control of the signatory and of no other person.
3. Any alteration to the E-signature, made after the time of signing is detectable.
4. Where a purpose of the legal requirement for a signature is to provide assurance as to the completeness and integrity of the information and any alteration made to that information after the time of signing is detectable.

An example of a reliable E-signature is a Digital Signature, which is created through encryption processes and can identify the signer and any alteration to the document.

2.2 E-Signature V Reliable E-signature

Both types of e-signature can be used to bind the contractual parties in any legal document, provided that the reliable e-signature has more trustworthiness than the e-signature. This is because when any party argues about the validity of the signature, it is very unlikely to alter or falsify the reliable e-signature.