September 23, 2019

The Law Commission’s report confirms that electronic signatures can be used to execute documents, including where there is a statutory requirement for a signature. This means that, in most cases, electronic signatures can be used as a viable alternative to handwritten ones.

In its report, the Commission sets out a simple statement of the law to end any uncertainty as to the validity of electronic signature and increase confidence in the use of this technology.

The Commission states that an electronic signature is capable in law of being used to execute a document (including a deed), provided that the signatory intends to authenticate the document and that any relevant formalities, such as the signature being witnessed, are satisfied. The Commission’s view is based upon legislation and court decisions, which relate to both non-electronic and electronic signatures.

The Commission explains that the common law in England and Wales has always been flexible in recognising a range of types of signature, 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 considered electronic signatures on a number of occasions and have accepted electronic forms of signatures, including a name typed at the bottom of an email or clicking an “I accept” tick box on a website.

These court decisions supplement the EU eIDAS Regulation, which states that an electronic signature cannot be denied legal validity simply because it is electronic.

However, where a signature has to be witnessed, the Commission’s view is that the current law probably does not allow for “remote” witnessing, such as by video link.

The Commission has made recommendations to address some of the practicalities of electronic execution and the rules for executing deeds, including:

• the creation of an industry working group to consider practical and technical issues around electronic signatures and provide best practice guidance for their use in different types of transactions;
• the industry working group should look at solutions to the practical and technical obstacles that exist to video witnessing. Following this work, Government should consider legislative reform to allow for this; and
• a future review of the law of deeds to consider broad issues about the effectiveness of deeds, and whether the concept remains fit for purpose and specific issues that have been raised by stakeholders. The review should include deeds executed on paper and electronically.

To access the Commission’s report, click here.