A document has been found to be something that instructs or records information. The equal status of electronic communications as ‘documents’ is recognised in the Civil Procedure Rules, which govern the conduct of litigation in the Courts of England and Wales. The Rules deal with disclosure by which one party is required to disclose documents it has to the other.
A ‘document’ means “anything in which information of any description is recorded”. The term extends to electronic documents and means any document stored in electronic form including email and other electronic communications such as text messages, voicemail, word processed documents, databases, documents stored on memory sticks and mobile phones, as well as documents stored on servers and back-up systems, metadata and other embedded data.
In the event of litigation the obligation to disclose electronic documents is rigorous and may require extensive searches of all electronic storage including backup systems. What about the signature of an electronic document?
We are used to associating the term signature with the manuscript endorsement of paper copy. But signatures may be provided in various ways.
The purpose of a signature is to identify sufficiently a signatory and associate them with the content of the document. It provides security to the recipient. The personal characteristics of manuscript signature are particularly helpful in providing evidence of identification and authenticity, but an endorsement intended to have the character of a signature is a signature however it is provided.
“His mark” was a way of providing a signature and there may have been little difference between one man’s ‘X’ and another’s. The typed inclusion of a person’s name, intended to be a signature, is a signature – as is the attachment of a facsimile image. In each case the level of security they provide may be less than a manuscript endorsement of paper copy but the level of security required will depend on the circumstances.
Depending on the nature of the transaction or process, the manner in which it is to be undertaken and the level of security required, the intended recipient may specify what will constitute a valid signature. So, for example, under the Civil Procedure Rules, when filing a document by email that contains a statement of truth, the party filing should retain the document containing the original signature. However, they may file a copy that either has the name of the person who has signed the statement of truth typed under it or a facsimile signature attached mechanically or is a scanned version of the original. The level of security required by the recipient Courts is, therefore, less than the requirement for a manuscript signature on paper copy, although the Court could, of course, require production of the original if needs be.
In public procurement, procuring bodies reasonably expect high levels of security and are usually specific in their requirements for signature and as to what will constitute compliance for the purposes of a tender being valid for consideration. Tenderers should expect to deliver paper copy with original signatures appended in manuscript, probably witnessed. Prospective tenders should make sure that they allow for this in the timetable for delivery of their tender.
There have been various initiatives to encourage electronic transactions internationally and standardise requirements. In July of this year the General Affairs Council adopted a Regulation of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the Internal Market.
Domestically, the use of an electronic signature fell for consideration in February 2014 in a case concerning the Consumer Credit Act. The Act was amended to permit the use of electronic communications but there was no clear statement that electronic signature would fulfil the requirement for signature. The Judge noted that a signature need consist of a name, but might be by way of a mark, even where the party signing could write. He concluded that ‘I Accept’ entered into a box for signature was unambiguous of the individual agreeing to be bound by the terms of the agreement.
The use of electronic communications is the norm and they have the same status as other communications, unless there are rules or specific requirements prescribed by statute or otherwise that say otherwise. Signatures are used to provide identity and association with the contents of a document but that may be made in various ways. If the authenticity of a communication needs to be determined with a higher level of security then manuscript endorsement of a signature on paper copy may still be preferred but in most cases there is no reason to doubt the effectiveness of electronic communications sent and received.
About the author: Christopher Coveney is a solicitor in the construction team at law firm Thomas Eggar LLP