Are electronic signatures legal?
An electronic signature is a symbol, or other data in digital format, which attaches to an electronic document and often appears as an image of a physical signature. Such signatures are legally binding within a range of circumstances. For example, an electronic signature is capable in law of being used as long as the person signing the document intends to authenticate the document and all formalities are satisfied.
The topic of electronic signatures has been bubbling away for some time, in fact since 2002. Fast forward to 2019, the Law Commission recommended that a multi-disciplinary group of legal, business and technical experts should be set up to consider practical and technical issues surrounding electronic signatures and identify solutions.
This government-backed industry working group published its “eSignatures Interim Report” in (Feb. 22). The report stated that the most sophisticated kind of electronic signatures can be “more reliable” than signatures witnessed the traditional way in an “unsupervised environment”. Now, as you look at a website dedicated to connecting you with an English or Welsh notary public, you may be wondering if you need the services of a notary. Well, you probably do.
This is because the person or entity receiving the document needs to be certain that you understand the effect and consequences of the document you are signing as you can’t change your mind later. And, of course, that it is really you doing the signing. It is the job of a notary to ensure that this is the case.
The industry working group, chaired by Mr Justice Fraser and Law Commissioner Professor Sarah Green, have said that the foundations for a “cultural shift in document execution” were already present. As notaries are only concerned with documents intended for use in another country, we are not reporting here on all the circumstances – the where, when, and how, of electronic signatures may be used. However, rest assured, your MyNotary notary has had the opportunity to review the topic ‘in the round’ – what electronic signatures mean for the legal profession in general, the background and an oversea perspective.
Why are electronic signatures not more widely used?
You may well ask! The answer is another question – can the technology be trusted?
Qualified electronic signatures (QES), particularly if “underpinned by a regulated digital identities trust framework” were “capable of fulfilling the same objectives as physical witnessing and attestation”. Since the process of obtaining a QES involved the parties identifying themselves to a certificate provider, the identity of the signatory could be linked to the signature.
“Given the complete electronic audit trail that signature platforms are now able to provide for each signature, there is also an argument to be made that a QES is likely to be more reliable than a signature witnessed in an unsupervised environment.”
The group went on: “Currently, a witness need not be independent, need not read the document, need not know the signatory, need not take steps to identify the signatory, and does not even vouch for the identity of the signatory.
“It is difficult to see therefore what extra protections can be provided by someone witnessing someone’s signature if they do not necessarily provide any of these protections.”
It seems the group could not agree on an accreditation scheme for signature platforms, with some arguing that it would give them “external validation” and others that “the level of bureaucracy and oversight required” would make it impractical.
“HM Land Registry already permits sales of property to be conducted using an electronic signature and is currently conducting a pilot to remove the need for witnessing certain documents.” Like me, you may have heard some horror stories (tenants claiming ownership and putting the property up for a reduced-price, quick sale) on just how ‘safe’ that has proved to be!!!