This article is going to discuss the use of Electronic signatures. E-signatures are recognised under English law. The legal framework for e-signatures in the United Kingdom (UK) is founded on the Electronic Services Regulations 2014, also known as eIDAS. It came into effect on 1 July 2016 and was applied in the UK with the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016. It endeavours to increase the use of authentication facilities and electronic identification along with increasing the legal framework regulating electronic identification/documentation. Additionally, to e-signatures, eIDAS also deals with trust services and electronic identification (e-ID) schemes.
eIDAS has defined an e-signature as ‘data in an electronic form that is attached to or logically associated with other data in an electronic form and that is used by the signatory to sign’. It also provides a definition of qualified e-signatures. They are e-signatures ‘that are based on a qualified certificate and which are created by a secure signature creation device’. These signatures fulfil the legal requirements of a signature in the same way a handwritten signature does. The are admissible as evidence in legal proceedings. tScheme Limited manages a voluntary accreditation scheme of certification services and provides a list of providers it has certified.
The law in England has a broad view as to what constitutes a valid e-signature. The Law Commission states that it is simply necessary that the signatory’s activity denotes an intention to authenticate. The guidance from the Law Commission gives the following non-exhaustive examples:
- Typing of a name.
- A type of advanced electronic signature which is a digital signature using an encryption system involving a certification authority.
- Scanned manuscript signature or a digitised version of a manuscript signature.
- Clicking an appropriately named button on a website such as, ‘I accept’.
The Law Society has also published detailed guidance on e-signatures. This is guidance only though as it does not have legal effect.
In September 2019, the Law Commission released the ‘Electronic execution of documents’ report. It discussed the formalities around the electronic execution of documents, particularly the electronic execution of deeds. The report stated that e-signatures can accomplish documents if the signatory intends to authenticate the document and the execution formalities are satisfied, this includes deeds. However, the report mentioned that the witnessing of a deed requires the physical presence of the witness. It cannot be done remotely or via video link.
The report also made several recommendations for an industry working group to monitor e-signatures, provide solutions to any encountered issues and then present these to government to consider legislative reform. It also suggested there should be a further scheme that looks at whether the concept of deeds is fit for purpose in the modern world.
It can be harder to prove the validity of e-signatures compared with handwritten signatures, that can be supported with the evidence of a forensic handwriting expert. However, the risk of e-signatures can be alleviated to some extent with the use of a ‘qualified electronic signature’.
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