Legality guide for electronic signature in the UK
The UK, as a common law jurisdiction, takes a flexible, non-prescriptive approach to the legality of e-signatures. For the purposes of this Guide « UK » excludes Scotland, which has its own legal system. A section dedicated to Scotland can be found below.
E-Signature Legality Summary
The UK generally adopts a permissive approach to electronic records and signatures. Even something as informal as typing a name at the end of an e-mail is capable of being a signature recognised by the law.
Three main situations have to be considered:
1. When a document is signed, there is often no legal requirement to use a signature at all: the signatories sign the document so as to indicate that they associate themselves with its contents. For a contract, signing also shows intention to conclude the contract and to be bound by its terms. In this situation, UK law does not stipulate any particular kind of signature.
2. For some kinds of document, UK law stipulates that the document must be signed in order to be legally valid. Again, in general, any kind of electronic signature is capable of satisfying a bare legal requirement for a signature unaccompanied by any other formality requirements. That could include something as informal as typing a name at the end of an email. Validity is a yes/no question: does the signature comply with any applicable legal requirements? Evidential weight is also important, but is graduated: how strong is the evidence provided by a signature as to the identity of the signatory, when the document was signed, what was signed and (if relevant) where? It is advisable to consider carefully what kind of signature to use for documents and transactions of differing value and significance.
3. Rarely, UK law may require a wet ink or a specific kind of electronic signature.
Choice of signature should also be considered in the context of other formalities that the law may sometimes require.
Types of Permitted Electronic Signature
The position is summarised by the Law Commission of England and Wales Statement of the Law in its Report on Electronic Execution of Documents (Sept 2019):
“(1) An electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.
(2) Such formalities may be required under a statute or statutory instrument, or may be laid down in a contract or other private law instrument under which a document is to be executed. The following are examples of formalities that might be required: (i) that the signature be witnessed; or (ii) that the signature be in a specified form (such as being handwritten).
(3) An electronic signature is admissible in evidence in legal proceedings.
It is admissible, for example, to prove or disprove the identity of a signatory and/or the signatory’s intention to authenticate the document.
(4) Save where the contrary is provided for in relevant legislation or contractual arrangements, or where case law specific to the document in question leads to a contrary conclusion, the common law adopts a pragmatic approach and does not prescribe any particular form or type of signature. In determining whether the method of signature adopted demonstrates an authenticating intention the courts adopt an objective approach considering all of the surrounding circumstances.”
The UK eIDAS Regulation
After Brexit, the UK replaced the eIDAS Regulation with a UK version, the UK eIDAS Regulation. As with its predecessor, in parallel with the common law, the UK eIDAS Regulation defines three levels of electronic signature. These have little significance at present, since almost no UK legislation requires use of the two higher levels of signature (advanced and qualified electronic signatures). Nor does English law confer any unique status on them.
Nevertheless, as terms defined in statute they are available for use by, for instance, parties to a contract who wish to specify use of a particular kind of eIDAS-standard signature. It is possible that future legislation may provide for use of an eIDAS-standard higher level signature as a way of executing certain transactions or documents, such as in real estate.
UK eIDAS defines the following three levels of electronic signature:
Simple: an electronic signature that does not meet the definition requirements for higher levels of electronic signature, i.e., Advanced or Qualified.
Advanced: an electronic signature that is (i) uniquely linked to the signatory; (ii) capable of identifying the signatory; (iii) created using electronic signature creation data that the signatory can, with a high level of confidence, use under the signatory’s sole control; and (iv) linked to the data signed in such a way that any subsequent change in the data is detectable.
Qualified (“QES”): an advanced electronic signature created by a qualified electronic signature creation device and which is based on a qualified certificate for electronic signatures.
The QES regime is underpinned by Qualified Trust Service Providers (QTSPs) such as DocuSign. At present UK eIDAS recognises both UK and EU QTSPs.
Documents That May be Signed Electronically
The following transaction types are generally eligible for the use of electronic signatures:
Corporate Resolutions (subject to any provisions to the contrary under the company’s constitutional documents)
Consumer Transactions (subject to any formalities requirements applicable to, for instance, consumer credit transactions)
Software and Content Licensing
Procurement (assuming there are not specific requirements to the contrary under the relevant procurement process)]
Some transaction types in the following areas may not be signed electronically in certain circumstances, or require caution to be exercised and necessitate assessment on a case-by-case basis:
Wills and testamentary dispositions (wet ink signature always required)
Deeds and Powers of Attorney
As with manuscript signatures, care must be taken to comply with surrounding legal requirements and formalities concerning matters such as authority to sign, whether delegation is permissible, order of signature, whether the document must be a single document, place of execution (if relevant for e.g. tax purposes), contractual or corporate constitutional limitations on kinds of signature, overseas laws in cross-border transactions, enforceability in other jurisdictions, registry filings, notarisation and other legal and commercial requirements. If the law requires a document to be in writing, that generally includes visible electronic form and so does not normally prevent use of an electronic signature.
Where a document is required to be witnessed, remote witnessing via video would not comply with a legal requirement for a document to be signed in the presence of a witness. Electronic witnessing in person using a facility such as DocuSign eWitness is permissible.
Consequences of Non-Compliance
Where the law prescribes a particular method of signing (or, more commonly, prescribes some other formality that must be complied with), the consequence of non-compliance is likely to be that the document or transaction is invalid.
A different but also significant issue is whether the chosen method of signature is evidentially sufficiently robust to stand up to challenge if a party claims that they did not sign the document, that the contents of the document that they signed were not as claimed, or that it was signed at a different time or place. In other contexts such as due diligence it may also be important to be able to demonstrate these matters to a third party. These considerations will influence both choice of signature method and good practice in creating and preserving audit logs and records.
The following cases are examples of where English courts have addressed the use of electronic signatures:
Golden Ocean Group Ltd v. Salgaocar Mining Industries Pvt Ltd  EWCA Civ 265;
Bassano v Toft  EWHC 377;
Neocleous v Rees  EWHC 2462;
Kassam v Gill (HHJ Worster, Birmingham County Court, 13 August 2018)
Some cases not directly concerning use of electronic signatures but nevertheless of interest include:
Emmanuel v Avison  EWHC 1696 (Ch) (burden of proof)
Yuen v. Wong [First Tier Tribunal] (2016/1089) (remote video witnessing of a deed)
Publicly Accessible Hyperlink(s) to Laws/Regulations relating to the matters discussed above
The Electronic Identification and Trust Services for Electronic Transactions (Amendment etc.) (EU Exit) Regulations 2019
Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC
In English law, an electronic signature operates as a signature if, objectively assessed, it is intended to authenticate the document (in other words for the signatory to be bound by it). In some circumstances a signature may have to comply with specific legislative requirements stipulating the kind of signature or other related formalities.
Many countries and regions permit the use of electronic signatures. International laws vary considerably as to whether they require specific kinds of electronic or digital signature to be used for different purposes.
Other countries also recognise as legally valid the electronic signatures such as:
- EU and UK and Ireland (eIDAS)
- USA (ESIGN Act + UETA)
- Canada (both at Federal level with the Personal Information Protection and Electronic Documents Acts or “PIPEDA” and at Provincial level such as for Ontario with the Electronic Commerce Act, 2000 or “EAC” and for Quebec with Quebec’s Act to establish a Legal Framework for Information Technology or AELFIT and Civil Code)
- India (Information Technology Act,2000)
- Australia (Electronic Transactions Act, 1999)
- China (People Republic of China Electronic Signature Law, 28 August 2004)
- Switzerland (Swiss Federal Act on Electronic Signatures, 18 March 2016)
- United Arab Emirates (Federal Law No1 of 2006 regarding Electronic Transactions and E-Commerce)
English law does not lay down any generally applicable minimum standard of reliability or security for an electronic signature. In some cases the law may stipulate use of a specific kind of electronic signature.
English law makes no fundamental distinction between handwritten and electronic signatures. However, the most informal electronic signatures are less evidentially robust than a typical handwritten signature. The more technically sophisticated the electronic signature and its surrounding records, the more evidentially robust it is likely to be if challenged or required to be proved.
A will requires a manuscript signature. Some kinds of document or transaction are subject to surrounding formalities that preclude electronic signatures or place significant obstacles in their way. Thus some financial instruments require physical form. Documents such as deeds have to comply with various formalities that require special care to satisfy. Documents that have to be filed or registered with a government agency may be subject to requirements that preclude electronic form. If a document has to be notarised that may in practice require a paper document. In some cases, but not often, the law stipulates use of a particular kind of electronic signature.
In general, failure to comply with a legal requirement for a particular kind of signature is liable to invalidate the document or transaction. Use of an informal electronic signature, even if legally valid in principle, increases the risk of inability to prove the signature in the event of challenge.
The law sets no general time limit on the validity of an electronic signature. However care should be taken with more sophisticated signatures to ensure that, for instance, supporting certificates have not expired.
Three levels of electronic signature usually refers to simple, advanced and qualified signatures as defined in UK eIDAS. However, English law attributes little or no significance to the hierarchy, except in the rare cases where legislation expressly requires an advanced or qualified signature.
As a former EU Member State, the UK has retained much of the eIDAS Regulation in its post-Brexit domestic law. This enables the eIDAS hierarchy of ordinary, advanced and qualified electronic signatures to be used.
At present UK eIDAS recognises EU trust service providers for the purpose of qualified electronic signatures. It is possible that that may change in the future.
Specific regulations or guidelines around the use of electronic signatures may exist in certain sectors, especially highly regulated areas such as the financial services industry or the healthcare sector.
The law of electronic signatures in Northern Ireland is largely the same as in England and Wales. However the common law rule that “a deed must be written on paper or parchment and not on any other substance” (Goddard’s Case (1584)) is still in force in Northern Ireland. The Law of Property (Miscellaneous Provisions) Act 1989 abolished, inter alia, any rule of law which restricted the substances on which a deed may be written. However, this Act only applies in England and Wales. Consequently, in order to avoid any doubt as to whether deeds governed by Northern Irish law satisfy this common law rule, such deeds should be executed in ‘wet-ink’ on paper by all parties rather than via electronic signature.
It is also important to note that there are limited circumstances in which the Land Registry of Northern Ireland will accept an “electronic document” that has a digital signature and is created within the Land Registry computer system in accordance with Section 32, Section 32A and Schedule 1A of the Land Registration Act (NI) 1970 (as amended by the Land Registration (Electronic Communication) Order (NI) 2011).
The above guide is very broadly applicable to Scotland in the sense that, on a very high-level basis, e-signatures are valid and legally binding as a matter of Scots law. Also, in terms of sources of law, much of the common law of England as it applies to e-signatures is similar in effect to the common law of Scotland; and a number of the sources of statutory sources take effect in Scotland also (including UK eIDAS).
However, Scots law differs markedly from English law in the significance the law attaches to the different levels of e-signature specified by UK eIDAS - i.e. "simple electronic signature" ("SES"), "advanced electronic signature" ("AES") and "qualified electronic signature" ("QES").
There are also issues in Scotland with the registrability of e-documents in certain public registers, including the registers maintained by Registers of Scotland for the registration and creation of interests in land. The Keeper of those property registers will not, except in very limited circumstances (the discharge of certain residential securities), currently accept e-documents for registration, and therefore documents which relate to property and which must be registered in such land registers must continue to be in the form of a traditional hard copy document signed in wet-ink.
Those parts of the law of Scotland which are not the same as the laws of England as regards e-signatures are largely set out in the Requirements of Writing (Scotland) Act 1995 (as amended) (the "1995 Act"). The 1995 Act takes effect as follows:
1. Certain prescribed transactions and arrangements must be in writing in order to have legal effect. These include (but are not limited to):
A. the constitution of a gratuitous unilateral obligation except one undertaken in the course of business; and
B. the constitution of a trust whereby a person declares himself sole trustee of his own property.
2. In order for such a document which is an e-document to be formally valid (that is to say, legally binding), the electronic signature applied to it must be an AES.
3. In order for such a document which is an e-document to have self-proving status in a Scottish court, the electronic signature applied to it must be a QES.
4. For all other e-documents (i.e. an e-document which documents a transaction or arrangement which need not be in writing as a matter of law under the terms of the 1995 Act), an electronic signature which is an SES will be sufficient.
5. It should also be noted that witnessing (and the attestation of such) is not applicable or relevant at all to the Scots law in this regard. An SES which is witnessed does not confer the same status as an AES or a QES. And it is in fact entirely unnecessary for any e-signature (whether SES, AES or QES) to be witnessed as a matter of Scots law.
Note that wills and other testamentary writings must be in the form of a traditional hard copy document which is signed in wet-ink. An e-signature on such a document will be invalid.
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so DocuSign cannot guarantee that all the information on this site is current or correct. DocuSign gives no representation or warranty as to the accuracy of the information on this site. Should you have specific legal questions about any of the information on this site, you should consult with a licensed attorney in your area.
Last update: September 2023