“S.I. No. 55/2022 - Electronic Commerce Act 2000 (Application of sections 12 to 23 to Registered Land) Regulations 2022”, to give it it’s full title (hereafter the “2022 Regulations”), brought into Irish Law Sections 12 – 23 of the Electronic Commerce Act 2000 (the “e-Commerce Act”), expressly and solely applying only to Registered Land in Ireland.
With a few caveats in its subsections, mainly concerning consent to use electronic signatures, and the procedural requirements of the public bodies to which the 2022 Regulations apply, Section 13 of the e-Commerce Act states simply that, “If by law or otherwise the signature of a person or public body is required … or permitted, then, subject to subsection (2), an electronic signature may be used”.
Of chief importance in S.13(2) is the Public Body’s (here the Property Registration Authority, or “PRA”) choice to require either an electronic signature or an “advanced electronic signature”. Indeed, an advanced electronic signature is required in cases where the document in question would require a witness (as set out in S.14 of the e-Commerce Act) or is required to have been made under seal (S.16).
As almost all documents submitted to the PRA purport to create or dispose of an interest in registered land, and as all such documents, in the ordinary course of affairs, are required to be witnessed or signed under seal, then it follows that an advanced electronic signature will be required on all documents submitted pursuant to the 2022 Regulations.
Advanced Electronic Signatures are defined in the e-Commerce Act as being:
(a) Uniquely linked to the signatory;
(b) Capable of identifying the signatory;
(c) Created using means that are capable of being maintained by the signatory under his, her or its sole control; and
(d) Linked to the data to which it relates in such a manner that any subsequent change of the data is detectable.
In its note on “E-Signatures, Electronic Contracts and Certain Other Electronic Transactions”, The Law Society of Ireland suggests that, in practical terms, the use of advanced electronic signatures involves the encryption of an electronic document using an electronic code (analogous to a PIN number) which is unique to the signatory. Where the document can only be encrypted by the signatory, and then decrypted by the recipient, reassurance in respect of the identity and unaltered nature of the document is provided.
The 2022 Regulations have only recently brought into law S.12-23 of the e-Commerce Act and its full effect is yet to be seen. The increased recognition of electronic signatures is certainly a welcome, if not inevitable, evolution of Irish Law and certainly one which Post-Covid business is likely to embrace as we move towards more digital solutions to commerce and online transactions.
The 2022 Regulations:
Law Society Note on E-Signatures, Electronic Contracts and Certain Other Electronic Transactions: