Tourism operators using digital waivers can sleep easy; the use of electronic signatures is heavily protected across North America and Canada. This armor is made up of an infrastructure of laws and acts that protects both the consumer and the company.
In addition to this, a study at MIT found that companies that have adopted digital transformation are a whopping 26% more profitable than similar operators in their industry!
There's never been a better time to ditch paper, so we've collated the most important information about the legislation that permits the use of digital waivers in the US and Canada.
United States
There are two bodies of law that generally govern the use of electronic signatures in commercial use in the U.S.
- The Electronic Signatures in Global and National Commerce Act (2000) is a United States federal law passed by the U.S. Congress to facilitate the use of electronic records and electronic signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into electronically. Under this Act, an electronic signature is given the same legal status as a written signature in all 50 states where federal law applies.
- The Uniform Law Commission also drafted the Uniform Electronic Transactions Act (UETA) in 1999 which looks to harmonize state laws that are based on the use of electronic signatures and their retention. UETA has been adopted by 47 states including Puerto Rico, the District of Columbia, and the U.S Virgin Islands. In states where both ESIGN and UETA have been adopted, ESIGN is given preference.
Both of these Acts dictate that electronic signatures…
- Can be used in nearly all cases to replace handwritten signatures
- Can be used in a court of law as long as the customer is made aware of what they’re signing, as per normal contract law.
- Cannot be denied in legal proceedings solely based on the fact that the document is in electronic form.
Court Cases
In Johnson v. Royal Caribbean Cruises, 2011 , an electronic waiver was upheld when a passenger injured themselves on a Flowrider, which is a surfing device commonly found on cruise ships. You can read about the full case on Recreation Law.
In Forcelli vs Gelco Corp 2013, the New York Supreme Court ruled that an email signature in a negotiation was legally binding as it showed intent from one of the parties to proceed with a contract.
What does this mean?
In the second case, there was no actual signature involved. Someone simply gave consent to proceed in an email followed by their email signature which in the court’s eyes qualifies as intent.
In the first case, the passenger was made aware of what they were signing and proceeded to go on the activity. These are the two key principles involved in contract law and should be at the forefront of your waiver process.
Canada
On a federal level, electronic signatures have been around since 2004 with the introduction of the Personal Information Protection and Electronic Documents Act (PIPEDA). This Act recognizes an electronic signature to be as valid as a physical one and is similarly admissible in the court of law.
On a provincial level, e-signature law is protected by the Uniform Electronic Commerce Act introduced in 1999. The UECA has been adopted by 7 provinces with the exception of Quebec which passed its own law called the “Act to Establish a Legal Framework for Information Technology”.
Both of these laws are nearly identical and, like their US counterparts, say that a contract cannot be voided solely based on the fact that it’s presented in an electronic format. Both acts also have a strict set of guidelines on what can and can’t qualify as a valid e-Signature.
It should be:
- created under full control of the signer
- able to confirm the signer’s identity
- 100% unique and distinctive to the person. E.g “X” cannot be used
- protected by the technology and be able to detect any changes
Canada is known to be quite technology-friendly when it comes to the implementation and usage of digital signatures, and has adopted an open legal model, which means that any eSignature is legally admissible unless proven otherwise.
Court Cases
In Saskatchewan, The Court of Queen’s Bench upheld an electronic waiver as enforceable in Quilichini v Wilson’s Greenhouse, 2017. You can read the full summary on Canadian law firm’s website, McCarthy Tétrault.
Are there any other steps I can take to protect myself?
If you’re still unsure, there are additional measures you can take. For example:
- Use a “scrollwrap” which requires the signer to physically scroll to the bottom of the agreement before they can sign their consent, giving them the full opportunity to read all of the text.
- Include an additional statement indicating the user has read and agrees to the entire waiver.
- Require the user to click on an “I agree” button, electronically sign their name on a touchscreen, and print their name by typing it. In the standard Wherewolf check-in, you can obtain all three of these.
- Include an electronic signature provision that clearly states the user is submitting their signature to be used as the legal equivalent of their manual signature.
- Include a provision explaining the process to obtain a copy of their waiver, and if you offer any alternatives to the process.
Wherewolf provides all of the above and more!
- Paper is perishable; digital waivers are not.
- Electronic Waivers are stored for as long as you have an active account with Wherewolf – not just the mandatory 7 years.
- Wherewolf sorts your waivers into a filterable database where you can search for records by first and last names, DOB, date, and activity, making waivers easier to recall.