COVID-19 has had an unprecedented impact on how business and legal transactions are conducted, not just within the UK but globally, with many countries imposing lockdown restrictions and banning face-to-face interactions. Understandably, the use of virtual signing software and information on the use of electronic signatures is a hot topic.
Electronic signatures can be used to execute documents or deeds (subject to two provisions):
- the person signing the document intends to authenticate the document; and
- any formalities relating to the execution of that document are satisfied.
This seems simple enough. The importance therefore is on the virtual signing process itself, in particular the witnessing of the execution of deeds.
The virtual signing process need not be complex. In fact, it can be as simple as a person electronically pasting a copy of their signature into a contract. Though this leads to one particularly obvious concern; what if someone else pasted this individuals signature into the document?
Well, this is one of the distinctions between ‘an electronic signature’ and an ‘advanced electronic signature’. The above is an example of an electronic signature, whereas advanced electronic signatures are (among certain other criteria) uniquely linked to and capable of identifying the signatory. Virtual signing software is available which allows for passwords to be included with documents so that only those who have the password can access them. Extra steps are also advisable in respect of how the passwords are communicated to the signatory, for example, using a telephone call rather than sending the password via an email which could be intercepted. This software also records the IP address of the signatory and witness (if applicable) thereby providing evidence that the person signing is who they claim to be and that a witness was physically present when a signatory signs.
The requirement for a witness to be physically present when the signatory signs a document has not been amended or removed as a result of COVID-19. The use of software such as WhatsApp, FaceTime and Skype are not acceptable mediums for witnessing documents.
This clearly creates obstacles in the current social climate and the hope is that once some normality returns the Government will make progress on the Law Commission's recommendation to establish an industry working group to consider the use of video witnessing. Given the prevailing use of video-telephony software in everyday life, and the improvements in the software since it was first introduced, personally I would welcome a change to permit documents to be witnessed by video conferencing, providing the authenticity can be evidenced.
It is likely that virtual signing and e-signatures will become much more common place in a post-COVID-19 world but how far will it go? Hopefully we will see progress and modernisation in this area. Necessity is, after all, the mother of all invention.
Since the outbreak of the pandemic, the law in these areas remains unchanged.