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.<\/p>\n
The position in the UK is that in most cases, electronic signatures can be used instead of handwritten ones with the government\u2019s view in March 2020 that electronic signatures \u201care permissible and can be used in confidence in commercial and consumer documents\u201d<\/p>\n
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.<\/p>\n
Case law has also established that clicking \u2018I accept\u2019 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 \u2018authenticate\u2019 that document?<\/p>\n
Parties should also be satisfied that;<\/p>\n
It is acceptable for deeds to be signed electronically.\u00a0 However, some organisations are unwilling to accept electronically signed deeds, so it is best to check first whether these will be accepted.<\/p>\n
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.<\/p>\n
The witness needs to be \u2018physically present\u2019, 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.<\/p>\n
The electronic execution of witness statements for litigation is acceptable.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n\n
| 1<\/td>\n | Simple contract<\/td>\n | Yes<\/td>\n <\/tr>\n | |||||||||
| 2<\/td>\n | Deed<\/td>\n | Yes, however some institutions (such as the Land Registry) unwilling to accept certain documents signed electronically so best to check with the organisation. A signature cannot be witnessed remotely (such as via an internet connection).<\/td>\n <\/tr>\n | |||||||||
| 3<\/td>\n | Witness statements<\/td>\n | Yes<\/td>\n <\/tr>\n | |||||||||
| 4<\/td>\n | IP assignment documents<\/td>\n | Yes \/ No \u2013 although the UKIPO accepts electronically signed documents, the EPO does not.<\/td>\n <\/tr>\n <\/tbody> \n\n \n \n \n <\/table>\n\n<\/div> |