Changes will be made to Jersey legislation by the Electronic Communications (Amendment No. 2) (Jersey) Law 202-, regulating electronic communications and related issues. These changes are necessary due to the development of new technologies, changes in business practices, and lessons learned from the accelerated transition to remote work as a result of COVID-19.
These additional amendments to the Electronic Communications (Jersey) Law 2000 will be introduced in the next few months. The Amendment Act No. 2 Law has been approved by the Jersey States Assembly and is awaiting the adoption of final ordinary measures for entry into force.
The benefits of these amendments will affect all areas of Jersey that rely on electronic paper flow. Enterprises and other organizations (especially those that are regulated) that issue documents in this way or plan to do so should consider developing new or updated policies and procedures for processing/verifying documents, taking into account upcoming changes in legislation.
Principal changes
In summary, the principal changes relate to:
Remote witnessing of signatures
The E-Comms Law does not currently specify how to electronically witness a person's signature on a document.
The amendments will set out ways to electronically satisfy a requirement (whether under an enactment or otherwise) for a signature to be witnessed. This will be in addition to any other lawful means of witnessing that signature. It will apply to the electronic witnessing of both electronic and (to some extent) traditional signatures.
Under this new provision, such requirement for witnessing may be satisfied where:
- at the time the document is signed, the signatory and the witness are able to see one another by means of an audio-visual link; and
- either (where the signatory is signing either a hard copy or electronic document): (i) by means of that (audio-visual) link the witness identifies the signatory and sees the signatory sign the document; (ii) the signatory sends an e-copy of the document to the witness; and (iii) the witness signs it, attesting to the signature of the signatory; or (where there is screen sharing and where both signatory and witness can see and manipulate the same electronic document): at the time the document is signed: (i) the signatory and the witness are also in communication by any other electronic means; (ii) the signatory and the witness can both see the document; (iii) the signatory makes his or her electronic signature on or in relation to the document; and (iv) the witness signs it, attesting to the signature of the signatory.
Despite the requirements under the second bullet point above, the new provision permits a person, who has electronically witnessed the signature, at any time to make a declaration in writing attesting to the fact. This provision could be relied on where for example the relevant document could not be provided electronically to the witness for attestation.
Authority to attach electronic signature for another person
The E-Comms Law does not currently expressly deal with a person attaching an electronic signature for another person.
A new Article will be added to the E-Comms Law that will apply where a person is required or authorised to sign a document. It permits a person to authorise another person to attach the first person's electronic signature to the document on the first person's behalf. It will apply despite any rule or presumption relating to agency or delegation.
Clarifying changes
There are further changes proposed to the E-Comms Law as well which are clarificatory in nature. These include:
Validity of electronic signatures etc. generally
Currently the provision of the E-Comms Law that states that a signature, seal, attestation or notarisation is not to be denied legal effect, validity or enforceability only because it is in electronic form, is in Part 3 (Requirements under enactments) of that Law.
This provision will be moved to within Part 2 (General principles) to make it clear that it is of general application and does not only apply in circumstances where there is a requirement for a signature under an enactment, as implied by its current position in the E-Comms Law.
In the E-Comms Law as it stands this provision contains the only substantive references to a seal, attestation or notarisation, so it is important that it is in the right place.
Electronic records within the definition of “electronic communication”
As its name suggests, most of the E-Comms Law applies to electronic communications, but the definition of “electronic communication” will be expanded to include electronic records - information which may not be communicated by electronic means. Electronic records includes information that may be generated, received or stored by electronic means (and that may also be – but not necessarily - communicated by such means).
The article was written by Peter German and Huw Thomas. To read the conclusion and recommendations for organizations working with electronic execution of documents, follow the link.
