Digital Identity and Mistake

Abstract

This article examines the impact of digital identity on commercial transactions, with a focus on mistake in contract when an individual’s digital identity is misused by another person. The article asserts that digital identity is emerging as a distinct new legal concept in the USA and Australia, as both countries move to fully digitalize government transactions. In both countries, these new schemes are being introduced without fanfare, through subtle, gradual change. These schemes are significant because they establish one identity, initially for use in transactions with government, but with the long-term consequence of also extending to transactions with the private sector. The implications of this change, and the nature and functions of the set of information that constitutes an individual’s identity for transactions, are examined. The analysis reveals that digital identity, in this context, consists of two sets of information. The primary set of information constitutes an individual’s transactional identity. As its name suggests, this is the identity required for transactions. Transaction identity is a defined set of information that typically consists of full name, date of birth, gender and identifying information such as a signature and/or a unique number. The article analyses the legal nature and functions of transaction identity in the context of commercial transactions. The article considers the central question of who, or what, is the legal person in the transaction, that is, who or what enters into legal relations. The analysis presents some intriguing results in relation to contract and mistaken identity. The article discusses the implications for the USA and Australia because of their notable similarities in terms of the type of scheme, strategy for implementation and legal system. However, the analysis has wider application to other jurisdictions. The emergence of a concept of digital identity has implications for countries with formal national identity schemes, as well as for those establishing schemes through gradual change such as those now being out in place in Australia and the USA.

Keywords: digital identity, legal person, contract, mistaken identity, USA, Australia