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:
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.