The legal position on electronically executing documents

With the onset of the Covid-19 pandemic and the resulting home working, the issue of whether legal documents can be signed electronically is being asked more frequently by clients.

The position in the UK is that in most cases, electronic signatures can be used instead of handwritten ones with the government’s view in March 2020 that electronic signatures “are permissible and can be used in confidence in commercial and consumer documents”

Contracts

There is no requirement for contracts under English law to take a specific format. Provided that the key elements are in place, such as offer and acceptance, a simple contract may be entered into with an electronic signature of the parties.

Case law has also established that clicking ‘I accept’ on a website, a name at the end of an email or a scanned signature all constitute valid signatures. The main question is – does the person signing the document intend to ‘authenticate’ that document?

Parties should also be satisfied that;

• The electronic signature is applied with the necessary intent and authority
• A company does not have provisions preventing the use of electronic signatures in its constitutional documents
• Where a party is from overseas, they should ensure that the laws of their own country permit electronic signature
• The contract itself does not prohibit electronic signature

Deeds

It is acceptable for deeds to be signed electronically.  However, some organisations are unwilling to accept electronically signed deeds, so it is best to check first whether these will be accepted.

In terms of witnessing a signature, there are no legal requirements around who can act as a witness, however businesses and individuals must keep in mind that a witness may be called upon to give evidence that they witnessed the signature. Therefore, using a third-party witness is the best approach. Where possible you should avoid having a spouse, co-habitee, civil partner or other family member witness signature of a document.

The witness needs to be ‘physically present’, therefore a document which requires witnessing such as a deed cannot be witnessed remotely (such as by video link). This will obviously make the signature of documents requiring a witness to be present (such as deeds) difficult given social distancing requirements and the required closure of many offices and businesses. The best approach is for the witness to stand 2 metres away from the signing party and then the device can be cleaned and shared with the witness for their signature.

Witness Statements

The electronic execution of witness statements for litigation is acceptable.

Intellectual Property Assignments

The UKIPO accepts documents signed electronically (such as assignments of intellectual property rights like patents and trade marks). This is the same for the EUIPO, which accepts electronically signed EU Trade Mark assignments and assignments of Registered Community Designs.

The EPO however does not accept documents signed electronically, except where EPOLine is used to file documentS electronically. Therefore assignments of European patent applications will still need to be signed manually.

Foreign Jurisdictions

As discussed above, where a document involves a party signing in a foreign jurisdiction or foreign property rights, you should be careful to ensure that the laws in their country permit them to sign electronically (if they need to do so). Many jurisdictions allow for electronic signature of documents, but as with the UK there are exceptions. France for example, has exclusions for certain documents such as private deeds, and Germany has statutory provisions that require wet ink signature for some documents.

Overall

Use of electronic signatures by clients may be essential to ensuring that business is transacted smoothly during this time of uncertainty. Making sure provisions are in place to carry this out (such as IT departments setting up the ability for staff and clients to sign in this way, and the ability to use electronic signature software) will prove crucial to many firms.

This update was prepared by HGF Senior IP Solicitor Chris Robinson. If you would like further advice on this or any other matter, please contact Chris.  Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.