Code of Practice

Chapter Text

Notaries may be instructed to authenticate electronic documents and/or asked to issue notarial acts in purely electronic form (i.e. electronic notarial acts). Such notarial acts may be issued where a signatory is not in the physical presence of the notary (i.e. where the signatory is a remote appearer) or where a signatory has appeared in person before the notary.

The subject of electronic documents is often conflated with remote appearance. However, they are different subjects which carry different risks and require separate consideration. The topic of remote appearance is addressed in a separate chapter of this Code.

Authenticating Electronic Documents

A document is anything in which information of any description is recorded.  An electronic document is information stored in an electronic form.

A notary who is instructed to authenticate an electronic document should take steps to ensure that the document is genuine before issuing a notarial act confirming the authenticity of that document, or certifying a copy of that document in the same way as the notary would with a paper document.

If an electronic document is not issued in the notary’s presence physically or via remote appearance, the steps taken to authenticate the document will normally involve contacting the person or authority that issued the document and recording that person’s or that authority’s confirmation that the document is genuine.

If a notary is asked to authenticate an electronic document issued through an electronic portal, the notary must: (i) take reasonable steps to satisfy themself that the portal is genuine; and (ii) view the electronic document electronic document on the portal in order to verify it against any copy provided to the notary.

A notarial act relating to an electronic document may be in the traditional paper-based format (attaching a printout of the electronic document) or in electronic format (attaching/integrating a copy of the electronic document).

Electronic Signatures

A signature is any mark inserted into a document in order to authenticate it with the intention of doing so.  An electronic signature is data in electronic form which is attached to or logically associated with an electronic document. An electronic signature can take a number of forms and there may be specific requirements for the form of a signature in particular jurisdictions.

Notaries should take care to ensure that an electronic signature has been applied to the electronic document in question by the signatory with the intention of authenticating it (executing a deed or a contract, issuing a letter or certificate, etc.).

Electronic Notarial Acts

An electronic notarial act is a notarial act that is issued in purely electronic form, whether or not any underlying documents were originally issued or signed in electronic form.

Notaries should apply the same document-security standards to electronic notarial acts as are applied to paper-based notarial acts by using an electronic signature that is certified to the highest available level, currently a Qualified Electronic Signature and applying to every electronic notarial act an electronic facsimile image of the notary’s seal of office. This is necessary to allow trust to be placed in the electronic notarial act as set out in Chapter 5 of this Code.

Requirements of Receiving Jurisdictions  and/or Recipients

Electronic documents, electronic signatures and electronic notarial acts are not universally acceptable.

Notaries must, prior to issuing an electronic notarial act, either:

• where reasonably practicable take reasonable steps to ascertain that an electronic document, an electronic signature, the proposed form of electronic signature and/or an electronic notarial act will comply with widely known requirements of the receiving jurisdiction and/or recipient; or
• inform the client that an electronic document, an electronic signature, the proposed form of electronic signature and/or an electronic notarial act may not be acceptable in the receiving jurisdiction and/or to the recipient, that the notary is unable to advise these requirements, and that the client must check this with the recipient.

Further Guidance, Standards and Approved Processes

The Faculty Office may from time-to-time issue or endorse guidance, standards and/or approved processes relating to electronic documents,  electronic signatures and/or electronic notarial acts. Notaries should have proper regard to and take due account of such guidance in their practice.

Outcomes

• You authenticate electronic documents on an equal footing with paper-based documents, applying the same standards of verification and issue notarial acts that provide confirmation of the authenticity of the document in question.
• You deal with electronic signatures in your notarial practice in a way that allows you to reliably authenticate such signatures.
• Your electronic notarial acts are issued using an electronic signature that is certified to the highest available standard and bear an electronic facsimile image of your seal of office.
• Your clients, relevant authorities and all other persons placing legitimate reliance on your notarial acts can place the same level of trust in your electronic notarial acts as they can in your paper-based notarial acts.
• Your electronic notarial acts, comply with widely known requirements for formal validity and registration, or where not reasonably practicable to ascertain requirements, clients are informed of the need to check such requirements themselves with the receiving jurisdiction and/or recipient.
• You register your electronic signature with the UK FCDO Legalisation office so that e-Apostilles can be applied to your electronic notarial acts.

Positive Indicators

• You use a Qualified Electronic Signature and apply an electronic facsimile image of your seal of office when issuing electronic notarial acts.
• When dealing with electronic documents issued through electronic portals, you satisfy yourself that the portals are genuine and you verify any relevant electronic documents presented to you by comparing them to the relevant electronic documents on the portal.
• You take appropriate steps to establish that an electronic signature was applied with the intention of authenticating, executing or issuing the document in question.
• You either take reasonable steps to ascertain and comply with any widely known formal validity and registration requirements in relation to electronic documents, electronic signatures and electronic notarial acts of the relevant receiving jurisdiction and/or recipient, or inform the client that you are unable to advise these requirements, and that the client must check this with the recipient.
• In your practice, you have proper regard to and take due account of Faculty Office guidance, standards and/or approved processes relating to electronic documents, electronic signatures and/or electronic notarial acts.

Negative Indicators

• You use an electronic signature that is not certified or is certified to a level lower than a Qualified Electronic Signature level and/or fail to apply an electronic facsimile image of your seal of office when issuing electronic notarial acts.
• When dealing with electronic documents issued through electronic portals, you fail to satisfy yourself that the portals are genuine and you do not verify any relevant electronic documents presented to you by comparing them to the relevant electronic documents on the portal.
• You issue an electronic notarial act without either taking reasonable steps to ascertain (and if appropriate, comply with) formal validity and registration requirements in relation to electronic documents, electronic signatures and electronic notarial acts of the relevant receiving jurisdiction and/or recipient, or inform the client that you are unable to advise these requirements, and that the client must check this with the recipient.
• In your practice, you fail to have proper regard to and take due account of Faculty Office guidance, standards and/or approved processed relating to electronic documents, electronic signatures and/or electronic notarial acts.