Code of Practice

Chapter Text

Notaries in England and Wales are permitted issue notarial acts using remote technologies where a signatory is not in the physical presence of the notary (i.e. where the signatory is a remote appearer). Such notarial acts may be issued in hard copy or electronic form.

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

In this chapter:

• remote technologies means hardware and software which facilitates the appearance of remote appearer before the notary and (in appropriate cases) the signing of documents on a remote basis and includes video conferencing technology and electronic signature platforms. 
• remote appearer means an individual who is not in the physical presence of the notary who wishes to have the signing or execution of a document authenticated by a notary or seeks the performance of another notarial act.
• video conference technology means any electronic device or process that facilitates communication of visual images and audio in real time between a notary and a remotely located individual, including a remotely located individual who has a visual, hearing or speech impairment.

Location of the Notary

Your notarial faculty is limited to the territory of England and Wales. Therefore, you must not issue notarial acts if you are physically located outside of this territory.

Statements of Remote Appearance

Notarial acts must not contain misleading statements.  A notarial act should therefore not state or imply (by statement or omission) that an individual was physically present with the notary if that individual “appeared” using video conference technology.

The Use of Digital Tools

When using digital tools to facilitate remote appearance, you should retain sufficient control over the signing and appearing processes so as to allow you to issue a notarial act in which trust can placed as set out in Chapter 5 of this Code.

You may wish to make use of digital tools to facilitate the identification of a remote appearer.  The use of such tools does not operate to the exclusion of your duty to verify the identity of the appearer and you remain solely responsible for the identification of the remote appearer.

When selecting a tool to use, you should ensure that the verifications carried out by it are of a sufficiently high standard as to allow you to comply with your duty to identify the appearer and to mitigate the risks of fraud and impersonation of your client, particularly by the use of forged identity documents and “deepfake” video performances.

Situational Risk Factors

Where possible, you should take steps to mitigate any relevant situational risk factors (e.g. matters relating to capacity or free will) in a manner appropriate to the situation and the level of risk. Where it is not possible to sufficiently mitigate such situation risk factors you should decline to issue a notarial act on the basis of remote appearance. Notaries should be aware of and take into account limitations to their own abilities to assess situations when relying on remote technologies.

Connecting Factors

In all cases when you issue a notarial act, there must be a sufficient connecting factor to your jurisdiction of England and Wales, unless the involvement of a notary located in England and Wales can be reasonably justified having regard to the circumstances of the matter.

The physical appearance of an individual before you within England and Wales is a sufficient connecting factor.

In other cases, connecting factors with England and Wales include (but are not limited to):

• the residence, nationality or place of business or incorporation of the client;
• the location of any person or asset to which the notarial act relates; and
• the governing law of the transaction to which the notarial act

Whenever you are asked to issue a notarial act, you should consider the relevant connecting factor with England and Wales (or where there is no such connecting factor, the circumstances of the matter which reasonably justify the involvement of a notary located in England and Wales) when deciding whether or not to act. If there is no sufficient connecting factor and the circumstances of the matter do not reasonably justify the involvement of a notary located in England and Wales, you should decline the instruction.

Requirements of Receiving Jurisdictions

Remote appearance is not universally acceptable, and notaries should, prior to issuing a notarial act on the basis of remote appearance:

• take reasonable steps to ascertain that remote appearance will comply with widely known requirements of the receiving jurisdiction and/or recipient; or
• inform the client that remote appearance 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 guidance, standards and/or approved processes relating to remote appearance. Notaries should have regard to and take due account of such guidance in their practice.

Risk Assessment

You should not carry out acts involving remote appearance without having first carried out and documented a risk assessment in relation to remote appearance and the use of technology in facilitating remote appearance.

Oaths, Affidavits, Statutory Declarations and Deeds

Nothing in this chapter is intended to affect or alter any requirement of law that may require: (a) a deponent to an oath or affidavit or a declarant to a statutory declaration be physically present with the notary when the oath or affidavit is sworn or the declaration made; or (b) a witness be physically present with the maker of a deed, will or other instrument.

Outcomes

• When meeting a remote appearer, you make proper use of available technology to issue notarial acts in a flexible and appropriate manner according to the needs of your clients and the relevant requirements of the recipients of your acts.
• Your use of remote technologies ensures that your notarial acts issued in respect of remote appearers warrant the same degree of trust on the part of your clients and all persons placing legitimate reliance on them as those issued in respect of clients appearing before you in person.

Positive Indicators

• You only issue notarial acts when you are physically located in England or
• Where your notarial act includes a statement as to the appearance of a signatory, you make clear that such appearance is remote or via remote technology.
• You retain sufficient control over the signing and appearing processes when using digital tools to facilitate remote appearance.
• You issue notarial acts involving remote appearance where there is either a sufficient connecting factor to the jurisdiction of England and Wales, or the circumstances of the matter reasonably justify the involvement of a notary located in England and Wales.
• You use digital tools in an appropriate manner to facilitate the identification of a remote appearer.
• You comply with your duty to mitigate the risk of fraud and impersonation in all your notarial acts.
• You decline to act on the basis of remote appearance where situational risk factors cannot be adequately addressed or mitigated.
• You either take reasonable steps to ascertain and comply with any widely known formal validity and registration requirements in relation to notarial acts issued on the basis of remote appearance 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.
• You regularly update your knowledge and review your understanding of remote technologies.
• In your practice, you have proper regard to and take due account of Faculty Office guidance, standards and/or approved processes relating to remote appearance.
• You carry out a risk assessment in relation to remote appearance and the use of technology in facilitating remote appearance.

Negative Indicators

• You issue notarial acts when you are physically located outside of England and Wales.
• Where your notarial act includes a statement as to the appearance of a signatory, you fail to make clear that such appearance is remote or via remote technology.
• You fail to retain sufficient control over the signing and appearing processes when using digital tools to facilitate remote appearance.
• You issue notarial acts involving remote appearance in circumstances where you have been informed or are otherwise aware that this is invalid or unacceptable.
• You issue notarial acts involving remote appearance where there is neither a sufficient connecting factor to the jurisdiction of England and Wales nor circumstances of the matter which reasonably justify the involvement of a notary located in England and Wales
• You fail to apply the same standards as for in-person appearers when identifying a remote appearer )e.g. you rely on a certification issued by or via a signature platform to confirm the identity of a signatory).
• You act on the basis of remote appearance where there are situational risk factors that cannot be adequately mitigated.
• 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 remote appearance 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.
• You use technology that has become outdated or obsolete where this poses a risk to the security of your client’s or the appearer’s personal data or the reliability of your processes when dealing with a remote appearer.
• 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 remote appearance.
• You fail to carry out a risk assessment in relation to remote appearance and the use of technology in facilitating remote appearance.