Electronic signatures: Allowed under common law
The Law Commission has paved the way for video witnessing of deeds by calling on the government to set up an industry working group which could consider the matter.
In a report published yesterday, the commission also confirmed that the current law provided for electronic signatures and produced a statement of it to reassure those who have doubts.
The commission said the majority of respondents to its consultation on the electronic execution of documents supported the idea that “it should be possible to witness an electronic signature via video link and then attest the document”.
The commission called on the government to set up a multi-disciplinary industry group to “consider practical issues” relating to electronic execution, including “the technical aspects of remote witnessing, including protections which could be available to protect individuals executing deeds”.
The commission said that if, following the work of the group, video witnessing was still considered an “attractive” option, the government should consider legislating for it.
The commission said it proposed in the consultation that video witnessing of documents should be carried out either via a signing platform which the signatory and witness log into, or by the signatory emailing the document to the witness immediately after signing.
A majority of respondents (72%) said they preferred the platform because email was not “sufficiently secure”.
However the Law Society, City of London Law Society and Clifford Chance warned against backing a particular technological solution.
The Law Commission called for a wider review of the law of deeds, to consider “broad issues about the efficacy of deeds and whether the concept remains fit for purpose”, as well as issues raised by its consultees.
In its statement of the current law on electronic signatures, the commission said an electronic signature was capable of being used execute a document or deed provided that the signatory intended to authenticate it and any formalities relating to a particular document were satisfied.
It said the common law adopted a “pragmatic approach and does not prescribe any particular form or type of signature”.
For example, courts have held that a name typed at the bottom of an email or clicking an ‘I accept’ tick box on a website amounted to valid signatures.
However, the commission said that deeds required the physical presence of a witness, even where both the person executing the deed and the witness were using electronic signatures.
Stephen Lewis, commercial and common law commissioner, said: “Electronic signatures can offer quicker and easier transactions for businesses and consumers.
“Our report aims to provide an accessible statement of the law which makes it clear that an electronic signature can generally be used in place of a handwritten signature as long as the usual rules on signatures are met.”
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