Law Commission E Signatures
“Electronic signatures can make it faster and easier for businesses and consumers to transact. The Department of Justice welcomes the interim report and is grateful for the work of the group, which will help inform the future use and acceptance of electronic signatures by governments and other stakeholders. The group`s work is also critical to ensuring that the UK remains a centre of legal excellence and that English and Welsh courts continue to lead the way in enabling the adoption of new technologies and supporting and facilitating digital trade. The following explanation of the law contains our general conclusions regarding the law regarding the validity of electronic signatures. It applies both when there is a legal obligation to sign and when this is not the case. Because of the way the law has evolved, our summary of the law also has broad application and is not limited to commercial and consumer documents. The executive summary of the report includes a legislative statement setting out the Commission`s high-level conclusions on the law relating to the validity of electronic signatures. The requirement to work remotely due to COVID-19 means that individuals and businesses are increasingly dependent on the use of technology and making agreements electronically. Although this is a very practical and necessary method for linking transactions, there is still some uncertainty about the validity of electronic signatures in some transactions, especially when it comes to the execution of acts. It should be noted that electronic signatures (such as DocuSign) are not the same as running an electronic version of the document (printing and signing a PDF file). For an act to be validly executed, certain formalities must be completed, namely: The document must be signed in the presence of a witness (or by two directors/authorized signatories) and given to the person requesting the document. The fact that a document must be signed in the presence of a witness poses a challenge to document signatories who self-isolate or work remotely without access to a witness. Last year, the Committee on Legal Affairs published a report on electronic signatures, which included guidelines for the electronic execution of documents, but did not go far enough with regard to guidelines for the execution of documents, leaving some uncertainties.
I would like to thank the industry working group for this important report on electronic signatures. We in government are excited about the potential benefits of new digital ways of working, and I particularly welcome the best practice guidelines presented by the group, which will help build trust and promote their adoption. I am committed to ensuring that the UK justice system remains at the forefront of adapting to digital innovation so that we can make the most of the opportunities it presents for our businesses and citizens. We were told that problems with the electronic execution of documents, including uncertainty about the legal status of electronic signatures, hinder the use of new technologies, where legislation requires a document to be “signed” or signed in deed. The Ministry of Justice welcomes the publication of the report of the Expert Group on Electronic Signatures. The report notes that, in most cases, electronic signatures can be used as a viable alternative to handwritten signatures.1However, some transactions require certain formalities, such as signing documents, which must be signed and “certified” “in the presence of a witness.” Electronic signatures can be used to sign documents, even if there is a legal obligation to sign, the Legal Affairs Committee confirmed today. This means that in most cases, electronic signatures can be used as a viable alternative to handwritten signatures. HM Land Registry, which deals with the registration and ownership of land and property in England and Wales, has since published guidelines on the use of electronic deeds and signatures, stating that transfers of registration and other electronically signed documents will be accepted provided that their requirements, such as mutual consent to the use of the electronic signature platform, be followed. Similarly, due to self-isolation and protection requirements resulting from the Covid-19 pandemic, the government recognized that the execution of wills – particularly the duty to testify – was difficult, and as a result, the wills laws of 1837 were amended to allow the “presence” of those who make and testify to be virtual by video link. This amendment will apply until January 31, 2022. The common law in England and Wales has always been flexible in recognizing a range of signature types, including signing with an “X”, initials only, a printed name or even a description of the signatory such as “Your loving mother”.
The courts have reviewed electronic signatures several times and accepted electronic forms of signatures, including a name entered at the bottom of an email or clicked an “I agree” box on a website. Our common law system is flexible and contracts can be drafted in a variety of ways. Most transactions do not need to be executed in a specific way.