Elisenda Fabrega: Rethinking Digital Signatures and Legal Consent
In Brief
Consent, traditionally based on handwritten signatures, is now uncertain due to the rise of digital formats and the lack of awareness about their legal recognition in court.
For centuries, signing an agreement has been closely linked to expressing a clear intention to enter into a formal commitment. Although the essential legal requirements have always been that consent must be informed, attributable, and verifiable, these were generally taken for granted in the past, as handwritten signatures were universally accepted as fulfilling these conditions, except in specific, rare situations.
Notwithstanding, in today’s world, where technology and digital formats are part of our daily lives, the notion of consent and its three fundamental pillars generate uncertainty, as many people struggle to fully assimilate the shift in how consent can now be reflected through different formats, not just handwriting. This lack of awareness, combined with doubts about whether digital signatures will actually be recognized in court, has contributed to the myth that only handwritten signatures can create binding contracts.
The Illusion of Ink: Legal Myths vs. Digital Realities
While this misconception can be easily debunked from a legal standpoint based on the content of European Regulation 910/2014 (eIDAS), which explicitly states that a signature, no matter if simple, advanced, or qualified, cannot be denied legal effect solely because it is in digital form, the practical reality remains far more complex. In practice, the judicial system has at times shown a certain degree of resistance to technological innovation, often placing more trust in traditional forms of evidence with which they are more familiar.
It is for the above reason that the qualified electronic signature, much like the handwritten signature, has tended to generate less friction within the judicial system. This is not only because it is legally equated with handwritten signatures, but also because its creation involves the use of a physical hardware device, which gives people a familiar feeling similar to traditional signatures by involving something tangible in the signing process, just like using a pen.
Nevertheless, the need to obtain a certificate, use a specific device, and complete a strict identity check often makes this type of signature inefficient. As a result, users and organizations prefer more user-friendly alternatives such as clicking an acceptance button, ticking a checkbox, scanning, or drawing a signature on a screen.
It is important to highlight that in these cases, although all digital signatures are legally recognized under eIDAS, the distinction between a simple and an advanced electronic signature becomes essential. Simple signatures present specific challenges in terms of evidentiary value because, on their own, it may be difficult to prove that the person who performed the action of signature was the intended one or that the act was carried out consciously and with full awareness of its legal implications.
For instance, a checkbox can be ticked by someone other than the legitimate owner of the computer device, making it difficult to link the signature to a specific individual or to prove the intent behind it.
Building Trust in Clicks: Strengthening Digital Consent Through Design and Evidence
Therefore, to improve the evidentiary strength of a digital signature, it is essential to support it with technical and procedural measures, as it is designing an onboarding process. This should guide the user through clear steps in which the three legal pillars of consent (being informed, attributable, and verifiable) are met and can be later demonstrated.
For example, the process should begin by clearly informing the user about the legal implications of giving their consent. This may involve asking them to review and accept specific terms, and explaining the purpose behind collecting their consent and, where applicable, the reasons for requesting certain personal data. This first step will help ensure that the consent has been obtained after properly informing the user, therefore complying with the first pillar.
Afterwards, once the user has understood and accepted specific conditions, linking such consent to a specific person and moment in time becomes essential. A useful tool in this case is performing identity verification through a Know Your Customer (KYC) procedure. This process provides duly documented confirmation of who the signer is and allows us not only to verify the identity of the person acting, but also to document the circumstances under which the act was performed.
Additionally, if this KYC is complemented by linking the action to a digital wallet exclusively controlled by the user and verifying this control through scoring tests or by introducing extra security measures such as multi-factor authentication, session integrity checks, and geolocation, an additional layer of protection is added. All these steps will help minimize the risk of impersonation and provide evidence that the process was completed without interruption or external interference.
A final step, or rather a requirement that should be followed throughout the entire procedure, is to implement as many recording mechanisms as possible to ensure that all relevant information is translated into a clear and understandable format.
Digital Signatures vs. Handwritten: A Shift in Evidentiary Power
This is particularly important, as such records can later be presented in legal proceedings, making their rejection by a judge highly unlikely. For instance, tools such as timestamping and audit logs that capture relevant details like IP addresses and device information will not only help trace who performed the action, when, and under what conditions but also reinforce the signature’s attribution and verifiability.
Based on the above, it becomes clear that a simple signature can be strengthened by adding security measures, allowing it to reach the level of an advanced electronic signature. Likewise, an advanced signature can be further reinforced with additional safeguards, making the entire consent process more robust and legally reliable. Therefore, this leads us to ask an important question: why do we as a society still place more trust in handwritten signatures?
The truth is that handwritten signatures can be forged or copied, and their validation often relies on subjective judgment. Our trust in them stems more from habit than from actual legal strength. We are accustomed to them because they feel familiar, tangible, and widely accepted. In contrast, a properly structured digital signature supported by identity verification, timestamps, and secure and immutable records can offer clearer, more objective, and tamper-resistant evidence.
Looking ahead, it is reasonable to think that this type of digital signature could not only match but even surpass the evidentiary reliability traditionally attributed to handwritten signatures. As digital tools become more familiar and accepted, we may witness the beginning of a new standard, one not based on appearances, but on the clarity, traceability, and security with which authenticity and intent can be demonstrated.
Disclaimer
In line with the Trust Project guidelines, please note that the information provided on this page is not intended to be and should not be interpreted as legal, tax, investment, financial, or any other form of advice. It is important to only invest what you can afford to lose and to seek independent financial advice if you have any doubts. For further information, we suggest referring to the terms and conditions as well as the help and support pages provided by the issuer or advertiser. MetaversePost is committed to accurate, unbiased reporting, but market conditions are subject to change without notice.
About The Author
Elisenda Fabrega is the General Counsel at Brickken, where she leads legal initiatives that bridge traditional law with the rapidly evolving Web3 ecosystem. Renowned for her expertise in tokenization—particularly the regulatory dimensions of real-world asset tokenization—she also participated in the European Blockchain Sandbox cohort. Beyond her role at Brickken, Elisenda is a sought-after speaker and educator, sharing her insights through various blockchain-focused courses and Master’s programs.
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Elisenda Fabrega is the General Counsel at Brickken, where she leads legal initiatives that bridge traditional law with the rapidly evolving Web3 ecosystem. Renowned for her expertise in tokenization—particularly the regulatory dimensions of real-world asset tokenization—she also participated in the European Blockchain Sandbox cohort. Beyond her role at Brickken, Elisenda is a sought-after speaker and educator, sharing her insights through various blockchain-focused courses and Master’s programs.
