25/09/19 – Following a project focusing on uncertainties regarding the formalities around the electronic execution of documents, the Law Commission issued its report on Electronic execution of documents on 6th September 2019.
- Electronic signatures can be used to execute documents, including where there is a statutory requirement for a signature.
- An electronic signature is capable in law of being used to execute a document (including a deed), as long as the signatory intends to authenticate the document and any relevant formalities, such as witnessing, are satisfied.
- English courts have traditionally been flexible in recognising different form forms of signature, including electronic signatures such as a name typed at the bottom of an email, or the ticking of an “I accept” box on a website.
- The approach of the UK courts is consistent with the EU eIDAS Regulation (EU/910/2014), which states that an electronic signature cannot be denied legal validity because it is electronic.
- There is uncertainty whether deeds can be witnessed remotely via video witnessing. The Law Commission’s view is that it is not currently legally permitted.
The Law Commission’s recommendations include:
- Establish 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.
- Industry working group to review video witnessing of deeds, and government to consider appropriate legislative reform.
- Review the law of deeds, and consider whether deeds remain fit for purpose (whether executed on paper or electronically).
- Government to consider codifying the law on electronic signatures to improve the accessibility of the law.