eSignature Legality Guide

There have been no significant changes. The legal status and admissibility of electronic signatures in the UK have not been affected by Brexit (from 1 January 2021). The use of e-signature platforms continued without disruption after the Brexit transition period ended in December 2020.

Under the UK eIDAS Regulation, an electronic signature is defined as electronic data attached to or logically associated with other electronic data and used by a person to sign. The UK eIDAS Regulation recognizes three categories of electronic signatures:

• Simple: An electronic signature that does not meet the criteria for Advanced or Qualified signatures. For example, typing a name at the end of an email may be considered a simple electronic signature.
• Advanced: An electronic signature that (i) is uniquely linked to the signatory; (ii) can identify the signatory; (iii) is created using signature creation data that the signatory can use under their sole control with a high degree of confidence; and (iv) is connected to the signed data so that any changes to the data can be detected.
• Qualified: An advanced electronic signature that is created by a qualified electronic signature creation device and is based on a qualified certificate for electronic signatures.

Since the UK eIDAS Regulation establishes minimum standards for electronic signatures, it does not override the broad definition of electronic signatures already present in the ECA.

The following types of transactions are generally suitable for electronic signatures:

• HR
• Corporate Resolutions (unless restricted by the company’s constitutional documents)
• NDAs
• Consumer Transactions
• Software Licensing
• Education
• Life Sciences
• High Tech
• Insurance
• Healthcare
• Chattel Paper
• Procurement (unless specific requirements state otherwise in the relevant process)
• Documents to be Recorded
• Documents to be Notarized.

Certain types of transactions may not always be suitable for electronic signatures and should be evaluated individually:

• Real Estate
• Banking
• Lending
• Government Filings.

Additionally, it is generally not advisable to use electronic signatures for the following:

• Powers of Attorney or Statutory Assignments
• Deeds.

If the authenticity of an electronically signed document is challenged, English courts will treat the document as authentic unless evidence is provided to the contrary. The ECA does not specify what proof is required for any type of electronic signature; this is determined by the facts of each case. As a best practice, keeping a clear record of the electronic signing process on the platform is recommended to address any evidentiary concerns.

If the requirements for electronic signatures under English law are not met, the resulting electronically signed documents may not be enforceable.

The following four cases illustrate how English courts have considered electronic signatures:

• Golden Ocean Group Ltd v. Salgaocar Mining Industries Pvt Ltd;
• Caton v. Caton [1867] LR 2 HL 127;
• Yuen v. Wong [First Tier Tribunal] (2016/1089); and
• R (on the application of Mercury Tax Group Ltd) v. HMRC [2008] EWHC 2721 (Admin).