The Industry Working Group’s final report on the electronic execution of documents has failed to agree on a way forward for eSignatures following “mixed views both internally and externally” regarding the certification and accreditation of providers.
The Group set out to “promote and facilitate the electronic execution of documents by matching appropriate solutions to the requirements of parties and to the problems they might face”.
In doing so, its final report examined two key areas related to eSignatures: issues arising from cross-border transactions and the risks of fraud.
Protection of electronic signatories to deeds from potential fraud
The report made clear the advantages of electronic signing platforms, such as the signing process itself being recorded via video and audio which, when stored, creates a record that is “both more accurate and longer lasting than the testimony of a human witness”.
It also noted platforms’ potential to eliminate the possibility of a defective execution as well as reducing the risk of intimidation and duress in the absence of a physical witness.
Where the discord arises, however, is on the subject of the certification or accreditation of platform providers in what is described as currently being the “technological Wild West”. The report set out two differing approaches to this requirement which are “at opposite ends of the spectrum [with] innumerable different points of view in between”:
“One end of the spectrum is the entirely market-forces view, namely that only the best (or the adequate) will survive, and such survival is dependent upon trust from users which should be earned. This viewpoint eschews regulation as being both undesirable but also unworkable in practice, particularly in terms of requirements that are non-technical in nature.
The other point of view is that some sort of approval or oversight mechanism is required so that some order can be imposed on what is currently a largely unregulated and unsupervised environment.”
While it’s said the general weight of the overall input was that some sort of accreditation be adopted, the Group reported “some isolated but strong opposition to this, predominantly from areas within the industry itself and from existing e-Signature platform providers”.
Namely, their concerns were that regulation can be “expensive, cumbersome, and inefficient, and would delay innovation, as well as the lack of an existing “suitable body […] that ought to be required to resolve a problem that did not currently exist”. Finally, concerns also related to “the integrity or safety of intellectual property in the underlying code used by existing providers”.
The Group therefore said it “does not at this point find itself in a position where it can proffer a unanimous recommendation in this area”.
Issues arising from cross-border transactions
The Group said the adoption of eSignatures is hindered by the uncertainty around the interpretation of different jurisdictions’ electronic execution laws and formalities, which in turn may give rise to challenges of increased costs, delays, and uncertainty.
What’s more, in relation to a transaction involving parties across multiple jurisdictions, it’s said questions arise as to the applicable law governing the transaction and, sometimes consequently, the enforceability of the relevant agreement.
The report did, however, put forward several ways of dealing with these issues, with one of the “cleanest” ways being an international norm of code, thus recommending the UK adopt the UNCITRAL Model Law on Electronic Signatures in some form.
In terms of mitigating potential inconsistencies in definitions and requirements of electronic signatures, one suggestion is for parties to adopt eIDAS standards. It’s also said “robust and universally available digital identities would function effectively alongside such standards” with the two being “mutually reinforcing”. The Digital Identity and Attributes Trust Framework was described as a “very positive development” in this regard.
- The full set of recommendations made by the Group is as follows:
- Enhanced certification through the role of the ICO and a review of the National Cyber Security Centre (“NCSC”) Technical Assurance Principles initiative
- Self-certification involving ICO/DSIT or another government body working as a moderator that:
- Develops a set of signing platform “basic performance standards”
- Publishes the standards on a “dedicated/go-to” webpage that is easily locatable for prospective platform users
- Invites signing platforms to confirm whether they meet the standards
- Publishes a list of signing platforms that submit self-certifications on a go-to webpage
- Confirms listings annually
- Work towards uniformity of approach to e-signing and online identification by way of an international standard or mutual recognition
- Government consideration of wholesale adoption of e-signatures for all purposes, and investigation into modernising any area where wet ink signatures are mandated
- Review by the Law Commission of the law of deeds with a view to the abolition of at least some of their current requirements
- A review of the law of statutory declarations
- The establishment by Government, or a suitable Department, of a standing body similar to the Industry Working Group, comprising both legal, industry and academic membership that is able to focus solely on these issues and to keep abreast of developments as they occur