Can an eSignature be Witnessed?

A relevant and often debated topic for the legal profession nowadays is whether someone can witness an eSignature (electronic signature). Indeed, as more legal practice turns to online and electronic resources it is only a matter of time before statute or precedent comes to address this question directly. However, at the time of writing this article, nothing of the sought exists.

For many transactions and contracts, eSignatures are a commonality these days. However, lawyers a generally unwilling to use an eSignature for documents that require the formality of a witness to the signature. For example, a deed. The law is currently unclear on what is and isn’t a legitimate witness to an eSignature.

Here we will give a brief overview of the current issues with witnessing eSignatures. Likewise, we will give our own thoughts on where we see this part of the law potentially progressing.

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The witness must be present

Under Australian law, where a signature requires a witness they must be there in person to affirm the signature. Hence, per this understanding, there can be a witness to an eSignature if they are there in person.

However, as the Law Society points out, an issue arises with the nature of the document itself. As the witness, they must then sign the same document to acknowledge the agreement. However, in the case of an electronic document, there is the possibility that the document will be replicated by the system. This means that where the witness may witness both signatures, one may actually be for a copy of the document.

So which document is the binding one? The law doesn’t have an answer to this yet. It may be that in the future that it considers both documents as one and therefore binding. However, as a current precaution, electronic documents that require a witness must ensure that all signatures appear in unison on the same document.

Non-present witnesses?

Under the current law, the witness MUST be there in person. Therefore, they cannot witness a signature via teleconference. The main issue is that the witnesses testimonies will be considered unreliable in court (if an issue does arise). Namely, the issues are that:

• As they are not there in person it is harder to argue that the document in question is the one that they saw.
• Due to the limitations on the viewable area, issues may arise over what may have occurred outside the witness’s camera’s peripherals.

Hence, until these become more reliable or the law addresses these issues directly, the witness must be there in person.

Online and cloud-relayed documents

A culmination of the two previous topics, the law seemingly does not allow the witnessing of an eSignature to cloud-based documents. By cloud-relayed, we mean documents that are stored online and/or transferred online between parties to receive the signatures. So, for example, a document being emailed between two parties.

The obvious issue here lies in remotely provided signatures. If both parties sign online, it is difficult for the witness to be present for both. Likewise, as discussed, they cannot substitute this with video conferencing.

However, as the Law Society also points out, the more interesting issue here returns to the idea of a duplicate document. Often where parties exchange documents online, the service will create a copy. Hence, there is no guarantee that the parties will sign the exact same document.

This means that even if the witness is physically present for both signatures if the document is stored online and is retrieved across two different days it may be considered two different documents under the law.

However, as with the previous two issues, no precedent or statute actually dictates this outright. These remain simply as issues to consider for the time being.

Final thoughts

Ultimately, under Australian Law witnesses to eSignatures must essentially act as if they are witnessing physical signatures. Hence, until the law provides greater clarity to this topic, most lawyers are unwilling to risk the use of eSignatures when a witness is required.