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Validity of e-signatures

January 2018 - Issue 101

Technology is developing and we are all too familiar with the ease of processing electronic documents. The Government has also recently approved HM Land Registry’s move to permit digital land registration within conveyancing, and eventually do away with the need for paper deeds. But what is the legal framework regarding e-signatures?

The Electronic Identification and Trust Services Regulation (EU/910/2014) and Electronic Communications Act 2000 recognised electronic signatures across the EU.  Although the Regulation is directly effective in the UK, the UK also issued the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (SI 2016/696).

The current regulations provide that in any legal proceedings, “an electronic signature incorporated into or logically associated with a particular electronic communication” and the “certification by any person of such a signature” shall be admissible in evidence in relation to any question as to the authenticity or integrity of the communication or data” (s7(1), ECA 2000).

Although this addresses the legal status of electronic signatures within legal proceedings, the regulations do not cover the concerns as to whether a document that is required to be executed in writing under English Law, is validly executed if signed electronically.

A practice note has been issued by the Law Society and the City of London Law Society in regards to electronic signatures executing documents. The note takes the view that English law permits a document that is required by statute to be in writing and/or signed, to be validly executed if engrossed with an electronic signature.

In December 2017, the Law Commission launched its 13th programme outlining the projects it plans to run in the next 3 years. Within this plan is a project relating to electronic signatures. The aim of the project is said to ‘address any uncertainty as to the validity of electronic signatures in all types of contract’ including how documents with an electronic signature should be witnessed. We hope to hear of the project outcome within 18 months so that the status of the widespread commercial use of e-signatures can be clarified.

Siân Llewelyn

Trainee Solicitor

e sllewelyn@prettys.co.uk

t 01473 298231

 

 

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