Electronic signatures
The lock down imposed by the Government has affected the ability to get contracts and other legal documents signed and witnessed in person. Thankfully, the law provides the option for most contracts to be signed electronically, subject to meeting certain requirements and the exclusions.
The legal framework
The legal framework is set out in part 4 of the Contract and Commercial Law Act 2017 (CCLA). The general position is that where a signature is required by law, this can be accepted electronically provided certain conditions are met. The overarching condition will always be for the party receiving the electronic signature to consent to the document being signed electronically.
The CCLA requires the electronic signature to:
adequately identify the signatory and adequately indicate the signatory’s approval of the information to which the signature relates. This includes making sure the signatory’s name is printed clearly next to their signature, and if applicable, records what capacity the signatory is signing on (i.e. as director of a company); and
be as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.
In most circumstances, an electronic signature will be presumed to be reliable as is appropriate if :
the means of creating the electronic signature is linked to the signatory and to no other person;
the means of creating the electronic signature was under the control of the signatory and of no other person;
any alteration to the electronic signature made after the time of signing is detectable; and
where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alterations made to that information after the time of signing is detectable.
What documents cannot be signed electronically?
Schedule 5 of the CCLA provides a list of documents which cannot be signed electronically, including:
wills, codicils or other testamentary instruments;
powers of attorney;
affidavits; and
statutory declarations.
On 3 April 2020, the Government announced its intention to make changes to the CCLA which will allow security agreements containing powers of attorney to be signed electronically.
Digital versus electronic signatures
An ‘electronic signature’ is defined as ‘a method used to identify a person and to indicate that person’s approval of that information.’ This wide definition means that an electronic signature may include:
an email sign off;
clicking an ‘I Agree’ checkbox (for example, accepting terms and conditions on a webpage before proceeding);
signing a paper document and sending back a scanned copy via email;
signing an electronic document on a touch screen device using your finger or a stylus;
copying and pasting a picture of your handwritten signature onto a document;
typing your name; and
a digital signature.
Digital signatures are more sophisticated than other types of electronic signatures. They use authentication tools to generate a digital signature, verify the signatory, and secure the signature by encryption. These features mean digital signatures have greater integrity than other forms of electronic signatures. Examples of providers of digital signature services include ADLS Webforms digital signing and DocuSign.
Get in contact
If you would like advice about the use of electronic signatures, or you would like our assistance with another legal matter you are facing, please contact your usual point of contact at Kemps Weir or contact us here.
Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.