Is adding initials on every page (initialing) necessary when signing a digital document?
With the increasing usage of e-signature in the past years, some bad practices (if not errors) have also spread*. They are tough to spot or question since they usually rely in those paper practices so deeply rooted in our everyday activities that we expect them to work in the digital world as well. However, as we will see later on, digital signing has its own rules and mechanisms that render these practices obsolete. That is why we decided to compile a series of articles scrutinizing, one by one, the most common ones. In this first article of the series, we will address the practice of initialing a digital document.
Initialing paper documents: what for?
Affixing initials on every page of a paper document is a common practice encountered when signing high stake contracts or legal documents. Although fastidious and time-consuming (just image initialing a 50-page agreement!), this practice has been developed to counter fraud when signing paper documents. It serves two main purposes:
- To confirm that the signer has reviewed and validated every page of the document;
- To ensure that any of the signing parties does not change the content of the individual pages or does not add a new page after the signature of the document, altering thus its content.
Initialing serves as a precautionary measure meant to protect the integrity of the signed document. Interestingly, adding initials on every page of a contract is not a legal requirement for a party to express consent; a signature is sufficient to create a valid contract (under Luxembourgish law, at least). Even if the agreement is not initialed or the initials on a single page are missing, the signature is still valid and the signers are bound to the terms and conditions defined in the document.
In some jurisdictions, initials might be considered as an extra element to support a binding agreement in case of dispute; this is why we advise you to check each local legislation before acting.
Nonetheless, this practice has become so familiar and frequent, that it has been transposed into the digital world as well. Being aware of and playing on the feeling of assurance it gives, some of the e-signature providers propose it to customers as an additional functionality, suggesting an extra layer of security.
Initialing digital documents: is just marketing?
Adding initials on digital documents is pointless since the e-signature inherent mechanisms address the two main existential reasons of initialing. An e-signature’s role is to protect the authenticity and the integrity of the entire document (not just of the page where the e-signature watermark is visible).
Its main characteristic - “What You See Is What You Sign” (WYSIWYS) - ensures that the properties of the document cannot be changed by either accident or intent after its signature. Trying to authorize individual pages is no longer aligned with the technical protection means and it can even not be adhered to an electronically signed document, because this would change the document content and thus break the e-signature mechanisms.
In addition, the way the e-signature providers propose to apply the digital initials is generally problematic because they are images affixed to the document. So, if this document has been previously signed, then adding such images represents modifications of the document, which in turn make the cryptographic mechanisms break, rendering the e-signature invalid.
Should the initialing practice be properly implemented for digital documents - despite the uselessness of the digital initials - then each initial should be applied using an electronic means, such as a timestamp (which can include images). Given that each page of the document should be timestamped individually by each signer, the entire processes becomes unnecessarily expensive.
In case the signing parties want to make sure that, during the signature process, each signer has reviewed every page of the document, then the e-signature solution can be configured to require the signer to read each page and allow her/him to sign only after s/he has gone (scrolled) through all pages. Similar functionalities already exist all over, for example when reviewing and agreeing the updated Terms and Conditions etc.
As for the conclusion of this article, Thomas Kopp, our Chief Scientist, could not have summed it up better:
“A digital initial is an unnecessary act in the context of a digital signature. It would even make the mechanics of a digital signature absurd. Therefore, the digital signature provides a much more efficient and "user-friendly" means to avoid the anachronism of the paper world.”
Hopefully, we have brought some clarity over initialing a digital document. If there is an aspect we have not covered here or you have any question, you can get in touch with us here. If not, stay tuned for the next article that explores multiple signing.
*to be technologically correct, we refer here to the most encountered practices when using with certificate-based signatures in PAdES format.
Disclaimer
The above represents LuxTrust’s understanding of the relevant law or regulation and should not be taken, relied on or interpreted as a legal opinion. Customers are encouraged to seek independent legal advice before taking any action or decision based on this information. LuxTrust may not be held liable for damages that may result from the use and/or interpretation of the information contained in this document.