Law Commission Publishes Stance on E-Signatures

Electronic (e) signatures have been in existence for a number of years. However, until now the law’s stance on their use in court has been vague at best.

A Digital World

As digitalisation continues to transform the world in which we live, the benefits to society at large are plain to see. From instant video communication across the globe to same-day-delivery of products at the touch of a button, modern technology is transforming the way we communicate and complete other everyday activities. Technological advancements are largely regarded to be positive – creating efficiencies and simplifying processes.

However, within the legal sector – an industry renowned for its use of more traditional processes and methods – the world’s use of technology can be problematic. For example, until earlier this month, the use of electronic (e) signatures has been a grey area in courts of law.

Clarifying the Use of E-Signatures

A report published by the Law Commission earlier this month served to remove much of the uncertainty surrounding the topic.

Summarised in an eight-paragraph statement, the report concluded that e-signatures were as valid as the traditional ‘wet’ signatures in a court of law. The commission noted that the common law had always been flexible in recognising different types of signature; examples of acceptable forms of wet signature include an ‘X’ and even familiar sign-offs, such as ‘Your loving mother.’ But, this latest news is one of the most significant breakthroughs within the legal profession for years. Various forms of e-signature – including clicking an ‘I accept’ box online -are now recognised as legally binding.

E-Signature Exclusions

However, the certainty with which the Commission reported its eight-paragraph statement on the matter belied a number of loose ends which were included in the full report.

The 124-page report excludes the use of e-signature in wills and registered dispositions. Wet signatures are still required for these purposes, and these areas will be subject to separate reform proposals.

Additionally, the report found that the ‘witnessing’ of an e-signature would have to be done in person rather than remotely. It also acknowledges the inherent impossibility of actually witnessing an e-signature; this is because a human witness cannot know for certain whether or not the data string pertaining to an e-signature is being applied to the same data string within the document. In other words, a person using an e-signature could potentially be duped into signing a different document altogether.

Closeup of business man holding digital tablet on hand and using electronic pen while working at office. Pointing tablet screen with blurred background.

Physical Signatures ‘An Essential Safeguard’

The report also plays down the government’s efforts to set up an online process for lasting powers of attorney application. The commission said that this would increase the opportunity for malpractice. In a statement on the subject, The Law Society said that ‘The removal of physical signatures removes an essential safeguard against abuse of a vulnerable sector of society.’

The news is reassuring for both the integrity and reputation of this particular area of the law – at least in the short to medium terms (the report indicates that wet signatures will be in use for at least another 10 years). However, as technological innovations continue, so does the possibility for a breakthrough solution.

Clarity and Certainty

Given the fact that there has long been much uncertainty surrounding the use of e-signatures from a legal point of view, the clarity within The Law Commission’s report is refreshing.

As technology continues to evolve, so will official legal guidance and procedures. Although the future use of technology in the legal sector is uncertain, any proposed new digital processes must be carefully considered before cautious implementation.

The Law Commission must continue its duty of care to ensure all demographics continue to be served fairly and with justice.

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