E–witnessing: The rules

The Electronic Communications Act 2000 made it legally possible to use electronic signatures to authenticate contracts and other documents and agreements.

With this legislation, documents could now be signed off with maximum efficiency and at a much lower expense.

What is e-witnessing?

As with some wet ink signatures, electronic signatures can require a witness. Electronic witnessing, or e–witnessing, is where a witness is present with the signer or signatories.

They then witness the electronic signature and add their own electronic signature to attest that they have witnessed it.

E–witnessing is beneficial in similar ways to electronic signatures as it can be carried out online, eliminates the need for time-consuming paperwork and is cost-effective.

The demand for electronic signatures and e-witnessing has increased dramatically in modern times due to globalisation and the recent trend of working remotely.

However, there is currently a grey area around the exact laws of e-witnessing, so it is important to ensure that your electronic signature software runs thorough checks to comply with legislation.

Navigating the ambiguity

As stated above, the laws on e–witnessing are not as clear as they could be. The Law of Property (Miscellaneous Provisions) Act 1989 states that a deed is only validated in the presence of a witness who attests the signature.

Nevertheless, this does not explicitly state that the presence of the witness should be physical.

It is also taken from legislation that was passed over 30 years ago; a time when technology was nowhere near the levels of today and a decade before the Electronic Communications Act 2000 made electronic signatures possible.

The Companies Act of 2006 did give a more recent update on witnessing signed agreements, however, it still did not specify if the presence of the witness needed to be physical.

With the question of physical presence in question, it is worth noting the statement published by the Law Commission in September 2019:

“With specific regard to deeds and the witnessing requirements thereof, a deed must be signed in the physical presence of a witness who attests the signature.

This is the case even where both the person executing the deed and the witness are executing/attesting the document using an electronic signature.”

Effective e–witnessing solutions

Although there are doubts surrounding the laws of e-witnessing, connecting to VirtualSignature-ID’s SmartSign and SmartForm technology can enable you to digitally initiate and control real-time witnessing of signatures, as permitted under approved national & international legislation. The technology includes GPS tracking and confirming the locations of each of the signatories, and will give you verification and legitimacy if any deeds come into question.

To comply with HMLR Safe Harbour Standards, an eSignature provider with the capability of identifying the signer and linking the witness through a signature creation device is required for most deeds. VirtualSignature-ID is a UK Government certified Identity Service Provider (IDSP) so is able to facilitate this type of Qualified eSignature witnessing and issue a Conveyancer’s Certificate.

To find out more about how we can help you integrate our Virtual-Witnessing technology into your existing workflows for convenient and efficient ways to get agreements legally executed online, then please contact us today.

Get in Touch

VirtualSignature-ID is a UK Government approved Identity Service Provider (IDSP) that offers professional services firms a suite of end-to-end eSignature, ID verification, AML and KYC solutions that can be incorporated into existing workflows and case, practice and document management systems. If you would like to find out more about how can help with your digital onboarding or discuss a particular solution that will fit your organisation’s requirements, then give our team a call on 0333 335 5176 or contact us and we’ll be pleased to demonstrate how the platform works.

For news and updates, you can follow us on Twitter and LinkedIn.