Digital signing of documents: Is the witness going the way of the Dodo? Part 1
If a document is signed in the woods, and no one is around to witness it, is the document still valid? Digital signing softwares say ‘absolutely’ but they would wouldn’t they?
Cast your mind back to Graham v Hall (2006). Justice of the Peace, David Graham and solicitor, Ben Gelin had attested to witnessing the signature of Kaylene Hall in her capacity as co-owner of a property used to secure a private mortgage. Her husband told Mr Gelin that Mrs Hall was dying of cancer, and that it was impossible for Mrs Hall to sign the documents in his presence. Besides, the JP had already witnessed her signature on the loan agreement. What Mr Gelin didn’t know was that Mr Graham had given the loan agreement the old ‘tick and flick’ and that he, too, had not met Mrs Hall.
After her husband’s death, Mrs Hall was shocked to learn of the encumbrance on her home; worse, her husband had been in default to the creditor, who was about to exercise their power of sale. This is because Mrs Hall had never had cancer. Her signatures on the loan agreement were forgeries committed by her husband in an effort to free himself of the substantial debts he’d accumulated.
Last November, the Conveyancing Legislation Amendment Bill 2018 (NSW) included amendments to the Conveyancing Act 1919 (NSW). S 6C was inserted to generally prescribe what does and does not constitute an electronic signature; s 23C(3) was inserted to note that “a requirement for writing may be satisfied in electronic form and a requirement for writing to be signed may be satisfied by electronic signature”; and s 38A was inserted, permitting that “a deed may be created in electronic form and electronically signed and attested in accordance with this Part.”
• deeds could not exist only electronically, given that they had to be “writing on paper, or parchment” ,
• the only types of documents that could be confidently signed digitally or electronically were those that required no attestation (ie no witness), and
• to witness a document meant that one had to be physically present at the time of signing, as it allowed for witnesses to confirm the testator’s capacity, understanding or freedom from pressure.
A quick note of the difference between electronic and digital signatures. The former is more generic, effectively operating as a ‘representation’ of a person’s signature – a picture file, typing one’s name at the bottom of a communication, and so on. The latter is much more robust, relying on both private key and public key cryptography to confirm validity. Digital signatures include hidden data that can be verified, making them a much more secure way of confirming the identity of the signatory of a document.
Theoretically, the requirements to confirm a mark’s validity should be the same regardless of whether they are applied to the testator or witness. It stands to reason, then, that the method for electronic witnessing should function in much the same way that the method for electronic signing does. This logic, however, fails to consider the context in which attestations exist.
Fundamentally, the act of witnessing a signature is carried out on legal documents of higher importance. The most important document – a will – even requires two! Any person with access to the aforementioned ‘representation’, frequently in the form of a picture file, may attach it to a document. If the original signer fails to keep the file secure, the system is readily open to abuse.
Electronic signatures have been common practice for more mundane documentation (sales invoices, for example) for years, but their reliability quickly plateaus. NSW is now allowing testators to rubber stamp both their own signature and their witness’ on documents such as their loan agreements.
Extreme caution should be undertaken from both sides when signing documents electronically, due to the increased risk of invalidation.
The changes to the NSW Conveyancing Act raise more issues than they answer.
• Apart from applying their digital signature, what must a witness do before ‘digitally signing’ the document? What is it they are actually ‘witnessing’?
• Do they have to stand or sit alongside the signatory in front of the computer that the signatory is using to digitally sign the document and watch them do so?
• How do they know that the passwords the signer is using are their passwords and that they haven’t been obtained by subterfuge or hacking from the original creator of the passwords?
• How do they connect the signer with the passwords and digital process the signer is using?
• Can they witness the document from their own computer?
If they cannot attest to the accuracy, reliability and security of the process how can they say that they have actually witnessed anything? Should we do away with witnessing altogether and simply rely on the security provided by the digital signing process?
The cardinal purpose of a witness’ attestation may have become redundant. Perhaps this is a sign of how the digital change will continue to roll out across the uber-conservative legal sphere.
Or perhaps this is simply a piece of legislation that has not been thought through carefully enough.
The NSW Court of Appeal found that, in breaching their duty of care, Messrs Gelin and Graham were to pay 60% and 40% of Mrs Hall’s damages respectively. How would all this have changed if digital signatures were used and their role was distilled to be little more than a jpeg.
Forgery may be an art, but anyone can copy+paste.
Next month in Part II of this review of digital signatures, in light of the change to the NSW legislation, we’ll examine in greater detail the many issues that limit the ability to witness documents using a digital signature.
For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222 or email firstname.lastname@example.org to see how we can assist.