Legality and enforceability of electronic signatures in the United Kingdom*

The United Kingdom (the “UK”) enacted the Electronic Identification and Trust Services for Electronic Transactions Regulations (“Regulations”) in 2016. The UK has also enacted the Electronic Communications Act of 2000 (“ECA”).

Before Brexit, the UK was also subject to Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market (“eIDAS Regulation”) as an EU member state. The UK left the EU on 31 January 2020 and entered into a transitional period, during which the EU law was still applicable in the UK. This transitional period expired on 31 December 2020. The UK has implemented the text of the eIDAS Regulation into UK law (with minor amendments to reflect the UK’s position outside the EU), in accordance with the European Union (Withdrawal) Act 2018 and the Electronic Identification and Trust Services for Electronic Transactions (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/89) (the “UK eIDAS Regulation”).

English law has a broad definition for electronic signatures. Section 7(2) of the ECA stipulates that “an electronic signature is so much of anything in electronic form as is incorporated into or otherwise logically associated with any electronic communication or electronic data and purports to be used by the individual creating it to sign”. English law follows this liberal approach to the definition of an electronic signature.

The UK eIDAS Regulation provides for the following three levels of electronic signatures:

• Simple — data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign.
• Advanced — an electronic signature that is (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under the signatory s sole control; and (d) it is linked to the data signed in such a way that any subsequent change in the data is detectable.
• Qualified — an advanced electronic signature created by a qualified electronic signature creation device and which is based on a qualified certificate for electronic signatures.

Because the UK eIDAS Regulation sets out minimal, not maximal, standards for electronic signatures, it has limited effect on pre-existing English law, given the already broad definition of electronic signatures that had been adopted in the ECA.

Yes, such a signature would qualify as an “electronic signature” under the ECA. Further, it would qualify as a “simple” electronic signature under the UK eIDAS Regulation.

Electronic signatures may generally be used in the following categories of transactions or documents:

• Human Resources
• Corporate Resolutions (subject to any provisions to the contrary under the company's constitutional documents)
• NDAs
• Consumer transactions
• Education
• Life Sciences
• High Tech
• Insurance
• Software licensing
• Healthcare
• Chattel Paper
• Procurement (assuming there are not specific requirements to the contrary under the relevant procurement process)
• Documents to be recorded
• Documents to be notarized

Using electronic signatures for the below categories or documents are not necessarily prohibited but additional considerations may be relevant or specified requirements will need to be met to allow for successful execution or usage:

• Real Estate, where the relevant documents concern the sale of land or generally require registration with the Land Registry
• Banking, to the extent the documents relate to real estate transactions
• Lending, to the extent borrower's obligations are secured on real estate
• Government filings, which depends on the government filing in question. Note that HM Companies House (corporate actions) generally accepts electronic filing and electronic signature of documents, while this may not always be the case with HM Revenue & Customs (for tax) and HM Land Registry (for real estate)

Further, use of electronic signatures where a document needs to be signed as a deed — for example, for certain transfers, leases, or charges over interests in land — requires close review to determine whether it can be executed electronically.

Electronic records and signatures may not be used for:

• various lease documents, including leases of 3+ years, deed of variation of lease, lease surrenders, and deeds ancillary to leases (e.g., rent deposit deeds, licenses to alter, assign or underlet)
• real property documents submitted for registration with Land Registry and Land Charges Registry, including deed of transfer of title, application for adverse possession, legal mortgage/charge, release of legal mortgage/charge, deed of easement, deeds of variation
• documents for HM Revenue and Customs, where stamp duty is payable
• some documents such as company accounts to be registered with Companies House outside its web-filing service
• various family law documents, including prenuptial agreements, separation agreements, deeds of variation, deed of disclaimer

It is not recommended to use electronic records and signatures as a means of execution for powers of attorney or statutory assignments.

No.

If a document’s authenticity is challenged, the English courts will accept such documents as prima facie evidence that the document was authentic and the burden of proof would be on the person challenging it to produce evidence to the contrary. Further, maintaining a detailed audit log through the platform would be sufficient to address any evidential issues that may arise.

Last updated: May 2021