Update on Electronic Signatures - Law Commission report now published.

Following on from our article, in February of this year, on the increasing use of electronic signatures, the Law Commission has now published its report on the subject.

Their report contains a statement of the current law as it applies to electronic signatures and confirms than an electronic signature is capable, legally, of being used to execute a document (including a deed) as long as the person signing intends to authenticate the document and that any formal requirements are satisfied, for example that the signature must be witnessed. It also states than electronic signature is admissible in legal proceedings.

The law in this area has taken a pragmatic approach, in cases decided over the years, in deciding for example that signing with an "X", with initials only or even with a clear description of the signatory (such as "Your loving mother") can amount to valid signatures. This flexibility of approach is likely to be followed by the courts when it comes to considering electronic equivalents of these kinds of examples.

Indeed, there have already been court cases which have held that the following amount to valid signatures:

• a name typed at the bottom of an email
• clicking an "I accept" tick box on a website;
• the header of a SWIFT message in the context of financial transactions.

In terms of deeds that require signature in the presence of a witness, the Law Commission's view is that the witness must be physically present, even if both signatory and witness are executing using an electronic signature. 

It is clear that this area of law has moved on significantly in the last few years with the increasing sophistication of technology and we will let you know of any further developments. The Law Commission recommends that an industry working group be established by the government to consider the issues further and possible reform to the Law by statute.

Although every effort has been made to ensure that the information provided in this article is accurate and correct, the information provided does not constitute any form of advice. Please note: this article only applies to England and Wales as property in Scotland and Northern Ireland is subject to different rules.