“DIGITAL SIGNATURE versus

ELECTRONIC SIGNATURE
in Remote Notarization of Paper Documents”

Submitted to:
Atty. Erik Lazo
Legal Counseling and Soc. Res Friday 5:30-7:30

Submitted by:
Frederick C. Egalla
2016-0406
 Notarization is when notary public certifies the authenticity of any
signature appended to a document. Notaries act as government
agents to witness the authenticity of signatures appended to legal
attestations. In effect, a simple document embodying a transaction
becomes a public document.
A Notary public is a person authorized by the court to perform
notarization of documents. a notary public must be a lawyer. Meaning,
one must have (1) passed the bar exams, (2) taken oath and (3) signed
the roll of attorneys. One must also be lawyer in good standing and
must not have been convicted in the first instance of any crime
involving moral turpitude. A lawyer cannot automatically become a
notary public upon signing of the roll, an application for notarial
commission before the Executive Judge is necessary. The lawyer must
comply with the tedious requirements set forth by the court before the
same can be issued, in order to perform notarial acts. Under the 2004
rules on Notarial practice, a notary public can perform notarial acts on
certain documents:
SECTION 1. Powers. -(a) A notary public is empowered to
perform the following notarial acts: (1) acknowledgments;
(2) oaths and affirmations; · (3) jurats; (4) signature
witnessing; (5) copy certifications; and (6) any other act
authorized by these Rules.

The Act of notarization is completed once the notary public affixed

his signature as stated in the rules to which:
RULE VII SIGNATURE AND SEAL OF NOTARY PUBLIC
SECTION 1. Official Signature. -In notarizing a paper
instrument or document, a notary public shall: (a) sign by
hand on the notarial certificate only the name indicated
and as appearing on the notary's commission; (b) not sign
using a facsimile stamp or printing device; and (c) affix his
official signature only at the time the notarial act is
performed.

Notarization has a legal impact on documents as it converts a

private document to a public instrument. Agreements on the contract
or any written document are enforceable once the document is
notarized because it is a strong proof of the document’s authenticity.
However, basic requirements must also be observed in notarizing
documents. The document is also rendered admissible in court as
tangible evidence once it is notarized. Notarization also prevents fraud
among legal documents and contracts. The documents that often
require notarization are Power of Attorney, medical documents, sworn
statements, affidavits, deeds, wills and trusts.
 It is stated under Section 1 of Public Act No. 2103, known as the
Notarial Law that, ““An instrument or document shall be considered
authentic if the acknowledgment is made before a notary public or an
officer duly authorized by law of the country to take acknowledgments
of instruments or documents in the place where the act is done. The
notary public or the officer taking the acknowledgment shall certify that
the person acknowledging the instrument or document is known to him
and that he is the same person who executed it, and acknowledged
that the same is his free act and deed. The certificate shall be made
under his official seal, if he is by law required to keep a seal, and if not,
his certificate shall so state.”

During the recent years, the pandemic had made a big impact in
our country as it affects most aspect of our lives. The continuous
changes on the status of different localities and lockdowns affected
even the administration of legal proceedings by the court. With the
prohibition on social gatherings, and strict enforcement of safety
protocols posed a big challenge to the courts on how to address the
legal matters and concerns of the public, including the notarization of
documents. Under the old rules, before a notary public may issue his
signature and seal in a document, the person or principal seeking the
notarization must appear personally before the notary which became
a challenge because of the restrictions set by the IATF. Transactions
depending on these documents were delayed or deferred causing
more inconvenience.
This prompted the Court to amend the 2004 rules on notarial
practice. On July 14, 2020, the Interim Rules on Remote Notarization
of Paper Documents was issued by the Supreme court. The RON
Rules allow the performance of notarial acts through
videoconferencing in places where the notary public or at least one of
the principals is in a locality under community quarantine due to
COVID-19. In effect, personal appearance, which is required in
notarization, includes a situation wherein the principal, witnesses, and
the notary public can see, hear, and communicate with each other, and
present and confirm competent evidence of identity to each other in
real time through the use of videoconferencing facilities.
It is important to point out that the notary public, as well as the
principals and the witnesses, if any, must be located within the
territorial jurisdiction of the notary public’s commission during the
videoconference. The notary public may refuse to perform the notarial
act in the event that the principal or witnesses exhibit behavior that
engenders reasonable doubt as to his understanding of the document,
or otherwise indicates a defect in his consent thereto. ( Under the
recent amendments, the person or principal seeking the notarization of
his document is required to send the document via courier or electronic
mail in order for the notary public to sign the document. This is where
the possible problem looms, because the notary public still needs to
sign the document or the traditional “wet signature”. Although the Rules
is silent on whether or not an electronic signature or digital signature
can be effected, recent legislation and issuances of the Supreme Court
supports the same.
The E-Commerce Act was designed to make electronic
contracting legally enforceable and was intended to settle legal doubts
about whether electronic forms of contracting were lawful. It recognizes
electronic documents as the legal equivalent of paper documents, and
electronic signatures as the legal equivalent of handwritten signatures.
The E-Commerce Act defines an “electronic signature” as “any
distinctive mark, characteristic and/or sound in electronic form,
representing the identity of a person and attached to, or logically
associated, with the electronic data message or electronic document
or any methodology or procedures employed or adopted by a person
and executed or adopted by such person with the intention of
authenticating or approving an electronic data message or electronic
document” (E-Commerce Act, Sec. 5(e)). Under this law, E-signatures
can only be valid provided that :
1. The signature must comply with the definition of an
electronic signature under the E-Commerce Act;
2. There must be a prescribed method of signing not
alterable by the parties interested in the electronic
document;
3. The method of signing must identify the party sought to
be bound and indicating such party’s access to the
electronic document necessary for his consent or
approval through the electronic signature;
4. The method for signing is reliable and appropriate for the
purpose for which the electronic document was generated
in light of all circumstances including any relevant
agreement;
5. It is necessary for the party sought to be bound, in order
to proceed further with the transaction, to have executed
or provided the electronic signature; and
6. The other party is authorized and enabled to verify the
electronic signature and to make the decision to proceed
with the transaction authenticated by the electronic
signature.

Also important are the Supreme Court of the Philippines’ Rules

on Electronic Evidence (REE), and the Department of Trade and
Industry and the Department of Science and Technology’s Joint
Administrative Order No. 2 (JAO), which sets out a regulatory
framework for digital signatures backed by certificates from recognized
trusted service providers and the promotion of the Public Key
Infrastructure (PKI).
The REE defines a digital signature as “an electronic signature
consisting of a transformation of an electronic document or an
electronic data message using an asymmetric or public cryptosystem
such that a person having the initial untransformed electronic
document and the signer's public key can accurately determine:
whether the transformation was created using the private key that
corresponds to the signer's public key; and whether the initial electronic
document had been altered after the transformation was made. An
electronic or digital signature authenticated under the Supreme Court’s
Rules on Electronic Evidence is admissible as the functional equivalent
of the signature of a person on a written document. Under the Rules,
an electronic or digital signature may be authenticated in any of the
following ways:
1. By evidence that a method or process was utilized to
establish an electronic signature or digital signature and
verify the electronic signature or digital signature;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as
establishing the genuineness of the electronic signature
or digital signature.

It is equally important to also distinguish what is Electronic

Signature or Digital Signature. The E-commerce Act and The Rules on
Electronic evidence is silent as to whether or not there is(are)
differences, and what possible legal effects may arise if a document
was effected by either.
An electronic signature is an electronic sound, symbol, or process
that captures a signature in digital form, much like signing a physical
contract manually using a pen. Electronic signatures are simply
electronic versions of handwritten signatures, bound digitally with the
signer’s identity, the person with the intent to sign, and the exact
moment the document was signed. This convenient signing method has
revolutionized modern workplaces and is now commonly used in
business transactions alongside digital signatures. It is basically an
electronic copy of your wet signature which can be attached on a
document. Normally it is used for document verification, it reflects
signer’s identity, intent to sign, and date and time of signing. One
disadvantage of E-signature is that it can easily be tampered, or can be
used by anyone who has the copy since it has limited encryption or
security features.
A digital signature is a mathematical mechanism that allows you
to sign an electronic document. Recipients of the document can verify
the identity of the sender, detect message tampering and spoofing, and
establish its authenticity. A digital signature is made up of unique
characters in the body of a message or at the end of a document that
essentially “locks” it and certifies its validity. Digital signatures are
based on public key infrastructure (PKI) or cryptographic operations.
Certificate based digital ID is used for encrypting and decrypting the
message itself, so the only one who can open it is the person or entity
you sent it to. Messages can be encrypted using different keys, which
means that even if they are intercepted through an insecure channel,
they cannot be opened or tampered with. It is basically an electronic
fingerprint registered in a database or PKI. It has Unique public and
private keys for security and is highly secured.
Digital signatures are significantly more secure than electronic
signatures. Because of the high-end encryption used to create them,
they are very resilient not just to third-party access or tampering, but to
viruses and malware as well. The only way to open a secured digital
document and inject malicious software is if you have access to a
unique, private key that is only meant for the recipient.
In contrast, electronic signatures are simply electronic versions of
handwritten signatures. They’re commonly used in business
transactions but they do not have the level of security that digital
signatures provide.
For this reason, digital signatures and e-signatures are used in
very different ways. A digital signature is used to encrypt and digitally
“mark” a document. It’s then re-encrypted using the recipient’s private
key. An electronic signature is simply a tool used to sign a document
online.
Both may serve different purpose. Digital Signature may be useful
to documents with sensitive information because of it being highly
secured. Electronic Signature on the other hand, although not as
secured as that of Digital signature but may work as to conveniently
attach signature on documents for faster and easier transaction.
Legally speaking, the use of both signatures render no
significance as to any legal effects. Their usage carries with it the
presumption of regularity in executing notarial documents, unless the
contrary be proved. The court still has the power to ascertain during the
proceeding the genuineness of the signatures or if it complied with the
existing rules. Both may be beneficial because it serves to expedite
notarization in response to the changing situation brought about by the
Pandemic and advancement in legal processes.

Resources:
1. (https://www.merriam-webster.com/dictionary/notarization)
2. (https://attorney.org.ph/legal-news/121-the-legal-impact-of-
notarized-documents)
3. (https://ndvlaw.com/notarization-through-videoconferencing-during-
the-quarantine).
4. (https://signaturely.com/digital-signature-vs-electronic-signature)
5. 2004 Rules on Notarial Practice A.M. No. 02-8-13-SC
6. 2001 Rules on Electronic Evidence A.M. No. 01-7-01-SC
7. Republic Act 8792, “Electronic Commerce Act of 2000”
8. 2020 Rules on Interim Remote Notarization of Paper Documents
A.M. 20-07-04-SC