The legal framework for electronic commerce and digital evidence in Bangladesh is primarily rooted in the Information and Communication Technology (ICT) Act, 2006, along with subsequent amendments and supporting rules. Bangladesh’s approach to digital execution is historically more prescriptive than many Western models, placing a heavy emphasis on technology that guarantees non-repudiation and security.
While the Act recognizes the broad concept of “electronic records,” the term given the full legal equivalence of a traditional wet-ink signature or seal is the Digital Signature. This term, as defined in the ICT Act, is specifically tied to cryptographic methods, particularly the Public Key Infrastructure (PKI). This makes the Bangladeshi legal model akin to the more stringent “Qualified Electronic Signature” (QES) model found in European contexts, prioritizing high-assurance identity verification and document integrity.
The overall intent of the legislation is to facilitate e-governance, e-commerce, and the secure storage of electronic records, thereby minimizing fraud and boosting public confidence in digital transactions.
Legal Framework: The Information and Communication Technology Act, 2006
The ICT Act of 2006 (and subsequent amendments, notably in 2013), serves as the central pillar governing digital transactions and signatures.
A. Definitions and Terminology
The Act makes an important distinction between general electronic records and the legally privileged Digital Signature:
- i. Electronic Record: Any data, record, or data generated, image, or sound stored, received, or sent in an electronic form or microfiche, including the digital signature.
- ii. Digital Signature: Defined by the Act as an authentication of any electronic record by a subscriber using an asymmetric crypto system (Public Key Infrastructure or PKI). This specific definition limits the highest form of legal recognition to a PKI-based signature verified by a digital certificate.
B. Legal Recognition and Equivalence
Sections 5 and 8 of the ICT Act provide the legal foundation for the validity of electronic documents and signatures:
- i. Section 5 (Legal Recognition of Electronic Records): Where any law requires information to be in writing or in the form of a document, such requirement shall be deemed to have been satisfied if such information is rendered or made available in an electronic form.
- ii. Section 8 (Legal Recognition of Digital Signatures): Where any law requires a signature or any other document to be authenticated by a seal, such requirement shall be deemed to have been satisfied if such electronic record is authenticated by a Digital Signature. This section grants the Digital Signature (PKI-based) the same legal equivalence as a traditional handwritten signature or affixed seal.
C. The Role of the Certifying Authority
To ensure the security and authenticity required by the PKI model, the ICT Act establishes a regulatory structure:
- i. Controller of Certifying Authorities (CCA): The Government of Bangladesh appoints the CCA, who acts as the primary regulator. The CCA is responsible for licensing and overseeing the security practices of Certifying Authorities (CAs).
- ii. Certifying Authorities (CAs): These are entities licensed by the CCA to issue, suspend, and revoke Digital Signature Certificates (DSCs) to individuals and organizations. The existence of a valid DSC issued by a licensed CA is the essential component that confers the highest legal status on a Digital Signature in Bangladesh.
The entire process hinges on the trust placed in the CA to verify the identity of the signatory before issuing the certificate.
Documents That Can Be Signed Digitally
Given the broad permissive nature of the ICT Act, most commercial, administrative, and private sector documents can be legally executed using a Digital Signature, satisfying any statutory requirement for a “written” document or a “signature.”
Key document categories suitable for Digital Signature execution include:
i. Commercial Contracts: Sales contracts, service agreements, non-disclosure agreements (NDAs), supply contracts, and business-to-business (B2B) agreements.
ii. Employment and HR Documents: Employment contracts, employee onboarding forms, internal policies, leave applications, and confidential agreements.
iii. Administrative and Financial Documents: Invoices, receipts, tender documents, proposals, purchase orders, and internal corporate approvals.
iv. Insurance and Banking: Many transactional documents within the insurance and non-excluded banking sectors, although highly regulated documents may have specific physical requirements.
v. E-Government Filings: The government heavily promotes the use of Digital Signatures for various administrative filings, tax submissions, and regulatory compliance documents.
Evidentiary Value: For these documents, using a PKI-based Digital Signature issued by a licensed CA ensures the highest possible evidentiary value, significantly easing the burden of proof in court regarding the signatory’s identity and the document’s integrity.
Documents That Cannot Be Signed Digitally (Statutory Exclusions)
Despite the broad applicability of the Digital Signature, the ICT Act (specifically through provisions and supporting rules like the Electronic Signature Rules, 2014) maintains a mandatory list of documents that are expressly excluded from the scope of digital execution. These exclusions are reserved for matters of high legal gravity or public concern where traditional physical documentation is deemed indispensable for legal certainty and record-keeping.
The following documents cannot be legally signed using a Digital Signature in Bangladesh:
i. Negotiable Instruments: Excluding cheques, any negotiable instrument as defined under the Negotiable Instruments Act, 1881 (e.g., promissory notes, bills of exchange, and certain commercial paper).
ii. Trusts: Documents related to the creation or execution of a trust under the Trusts Act, 1882.
iii. Wills and Testamentary Dispositions: Documents related to the execution of a will, codicil, or any testamentary disposition.
iv. Power of Attorney (PoA): The creation, execution, or revocation of a Power of Attorney.
v. Conveyance of Immovable Property: Any contract for the sale or conveyance of immovable property (real estate, land, and houses) or any interest therein, as defined under the Transfer of Property Act, 1882.
For any document falling under these five categories, parties must revert to the traditional method of execution, involving a physical signature, stamping, and often mandatory registration with the relevant authorities.
Notable Changes in Legislation and Practice
The Bangladeshi e-signature framework has seen two major legislative updates since its inception, focused mainly on enforcement and scope:
The ICT Amendment Act, 2013
The 2013 amendment significantly revised the penalties and enforcement mechanisms under the ICT Act, primarily focusing on cybercrime and security. While this amendment did not fundamentally alter the definition or validity requirements for Digital Signatures, it reinforced the security environment in which these signatures operate, providing more teeth to the law regarding data breaches and digital fraud.
The Electronic Signature Rules, 2014
The introduction of the Electronic Signature Rules in 2014 provided necessary procedural clarity, specifically addressing the technical requirements for different types of electronic signatures and elaborating on the duties and liabilities of Certifying Authorities and subscribers. These rules confirmed the continued dominance of the PKI-based Digital Signature as the gold standard for legal equivalence.
Future Trajectory: Towards Broader Electronic Recognition
While the ICT Act remains the governing law, there has been a global trend, including in neighbouring jurisdictions, to move toward greater recognition of simpler or Advanced Electronic Signatures (AES) that are not strictly PKI-dependent, provided they meet high evidentiary standards. Bangladesh’s framework is highly secure but could potentially be broadened to formally incorporate AES-equivalent solutions, which rely on secure audit trails and multi-factor authentication, to better facilitate high-volume, lower-risk transactions currently managed by non-PKI electronic methods.
Conclusion
Bangladesh operates a secure, high-assurance model for digital transactions. The ICT Act, 2006, establishes the Digital Signature (PKI-based) as the legally recognized equivalent of a handwritten signature or seal. This stringent requirement, enforced by the Controller of Certifying Authorities and licensed CAs, ensures security and non-repudiation in digital commerce and governance.
Businesses operating in Bangladesh can confidently digitize the vast majority of their commercial documents using a certified Digital Signature. However, strict adherence to the statutory exceptions—particularly those concerning trusts, wills, Power of Attorney, and immovable property—is mandatory to avoid the invalidity of critical legal instruments.
Disclaimer
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so Flowmono cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a legal practitioner in your area.
References
i. Information and Communication Technology Act, 2006 (Act No. 39 of 2006, as amended by the Information and Communication Technology (Amendment) Act, 2013).
ii. Electronic Signature Rules, 2014 (promulgated under the ICT Act, 2006).
iii. The Negotiable Instruments Act, 1881.
iv. The Transfer of Property Act, 1882.
