No change in the law is necessary for electronic signatures to meet a statutory requirement for a signature on a document, the Law Commission has concluded. Preliminary findings of a study published today on the electronic execution of documents also propose that witness requirements for signatures on deeds be fulfilled by video link.
The commission’s proposals will be welcomed in Whitehall and by bodies such as Land Registry, which is attempting to digitise the home buying process. Nearly two decades after the Electronic Communications Act 2000 created a statutory basis for electronic signatures and two years after the Law Society and City of London Law Society issued a practice note on executing commercial contracts with electronic signatures, uncertainty still abounds about the legal status of digitally signed documents.
Announcing today’s findings, law commissioner Stephen Lewis said: ’Contract law in the UK is flexible, but some businesses are still unsure if electronic signatures would satisfy legal requirements. We can confirm that they do, potentially paving the way for much quicker transactions for businesses and consumers.’
Concluding that no further primary legislation is necessary, the document states that: ’The combination of EU law, statute and case law means that, under the current law, an electronic signature is capable of meeting a statutory requirement for a signature if an authenticating intention can be demonstrated. This is not limited to a particular type of electronic signature.
’Furthermore, it is our view that an electronic signature inserted with the intention of authenticating a document would be sufficient to satisfy a statutory requirement that the document must be executed “under hand”.’
However the commission stresses that its proposals are provisional and will be finalised following public consultation. And, despite the apparently bold endorsement it proposes further steps that could be taken to clarify and build certainty in the law.
One option would be to consider is whether a claim could be brought using the test case procedure under the Financial List to seek an authoritative High Court ruling on the use of an electronic signature in particular circumstances.
In further steps to improve the law, the commission seeks views on whether:
- The government should set up a group of industry experts to monitor the use of electronic signatures and advise on potential changes
- Webcam or video links could be used instead of a physical witness for documents which require witnessed signatures
- There should be a move away from traditional witnessing in person to: a signing platform alone, where the signatory and witness are logged onto the same programme from different locations; or the ability of a person to ’acknowledge’ that they applied an electronic signature to a witness after the event
- A further project should be carried out on whether the concept of deeds is fit for purpose in the 21st century
However it warns the government against any ’overly prescriptive or detailed legislation dealing with technology’.
The deadline for responses is 23 November 2018.