eSignature Legality in The United Kingdom

E-Signature Legality Summary

The rules and case law governing electronic signatures are broadly consistent across the UK, which generally adopts a permissive approach to electronic records and signatures.

Notable Changes in E-Signature Law Since 2020

None. Brexit (from 1 January 2021) has not had any material impact on the legal validity and admissibility of electronic signatures under UK law. Accordingly, Brexit did not adversely impact the use of e-signing platforms following the end of the Brexit transitional period in December 2020.

Types of Permitted Electronic Signature

The UK eIDAS Regulation generally defines an electronic signature as 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. The UK eIDAS Regulation recognizes the following three levels of electronic signatures:

• Simple: an electronic signature that does not meet the definition requirements for higher levels of electronic signature, i.e., Advanced or Qualified. Thus, typing one´s name at the bottom of an email might constitute a simple electronic signature. 

• Advanced: an electronic signature that is (i) it is uniquely linked to the signatory; (ii) it is capable of identifying the signatory; (iii) 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 (iv) 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.

Documents That May be Signed Electronically

The following transaction types generally are eligible for the use of electronic signatures:

• HR

• 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.

Further Guidance

The following transaction types may not be signed electronically in certain circumstances and require an assessment on a case-by-case basis:

• Real Estate

• Banking

• Lending

• Government Filings.

Further, it is not recommended to use electronic records and signatures in the following circumstances:

• Powers of Attorney or Statutory Assignments

• Deeds.

For documents signed electronically where the document’s authenticity is challenged, English courts will accept such documents as prima facie evidence the document is authentic and it will be up to the person challenging that to produce evidence to the contrary. The ECA does not address what evidentiary authority should be provided to any type of electronic signature; instead, it is a factual determination. In terms of best practices, maintaining a clear record of the electronic signing process through the platform would be sufficient to address an evidential issue that may arise.

Enforcement Penalties for Non-Compliance

Failure to follow the requirements for electronic signatures under English law may result in the electronically signed documents not being enforceable.

Seminal Case Law

The following four cases are examples of where English courts have addressed the use of 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).

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016

• Electronic Communications Act 2000 

• 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