Electronic Notarisation - the Way Forward
06/10/2011
The Notary – what images and thoughts come to mind? The oldest branch of the legal profession? Shylock going to the notary[1] to seal his bond for a pound of flesh? Cosi Fan Tutte where the Notary is summoned to legalise the marriage? Ribbons and sealing wax? Florid documents expressed in quaint antiquated language?
All that is set to change. How about creating your document electronically which is then digitally signed before the notary? He also checks your I.D. and the substance of the transaction in the usual way; authenticates with his own digital seal and signature, emails to the FCO, who legalise the document and return it within minutes?
The notary attaches the notarised and legalised document to an email and sends it over the internet to its destination. All this achieved within an hour or two and possibly from your office? Too good to be true? Well, the technology to achieve this is with us, and depending on the outcome of a review by the FCO could be reality in 2011.
SECURITY OF THE SYSTEM/SIGNATURE
E-notarisation has been available to the UK Notary since May 2008. In cases where no legalisation is required several notaries (including the writer) have already prepared and despatched an electronic notarial act. Considerable work has been done by The Notaries Society in conjunction with Globalsign to make this a reality.
Many of you may be familiar with the concept that has been demonstrated by Globalsign at several key Notary events and seminars. What may not be obvious until you sit back and think about it, is the additional security an electronic system offers. To perform an equivalent paper based authenticity and integrity check on a document you’d need to devise a system to look at every fibre within the paper and every ink molecule and detect any changes or movement. That’s effectively what e-notarisation now offers the Notary in addition to speed, flexibility and portability.
JOB OF THE NOTARY
With fraud so prevalent and global trading the norm, often over the internet, the job of the notary is ever more important. He takes responsibility (among other things):
- for the authenticity of the transaction;
- that the identity of the parties whose signature(s) the Notary is attesting have been checked;
- that the parties appear to understand the nature of the transaction they are entering into and (where appropriate) that they have taken legal advice;
- that the signatories have the capacity and authority to execute the document(s) whether as individuals or on behalf of a company or other organisation.
ACCEPTANCE ABROAD BY THE RECIPIENT
As always with notarial work it is the recipient of the executed document in the country of destination who must be satisfied. Some parts of the world will be more receptive to the new technology than others but the use of Adobe should ensure a broad reception.
The Notaries Society in England and Wales with Globalsign are hoping to establish a platform for the conduct of e-notary business across the Commonwealth based on their model.
The USA is advanced with its electronic notarisation system. It appears that some 36 states accept some form of electronic notarisation. At The National Notary Association of America Forum in New Orleans in May 2008 a representative of The Notaries Society reported on the success of the e-notarisation pilot scheme. Even more significantly the UK FCO attended and announced that they had appointed consultants to advise them on the introduction of the e-apostille with a view to offering notaries here an electronic service. Members of The Society will expect by a process of increasing use of the electronic act to seek to encourage or persuade those in other countries of the efficiency of dealing with notarial acts in this way and thus expand its utilisation.
E-LEGALISATION
Much work has been done by The Notaries Society, Globalsign and the FCO, and it is understood that the FCO consultants are to report by the spring of 2009. In any event it is very encouraging to know of the commitment of the FCO to the project.
Further the Hague Conference has been working for a number of years on the provision of a standardised electronic apostille. New Zealand is in an advanced state of readiness for the issue of e-apostilles.
WAY FORWARD/FIRST STEPS
With so much business (including notary business) being transacted or aided by the use of email and the internet, it appears an inevitable development that the main function of the notary will be achieved more and more by electronic means.
Initially, it is expected that the signature of the parties will continue to be made in manual form before the notary who will then create an electronic version (pdf) which the notary will then digitally sign and authenticate. The next stage would be to introduce a fully electronic act with all signatures being made electronically.
So can the notary now throw away his seals and ribbons, brass rivets, his eyeletter and punch and the other paraphernalia of his traditional art? Well not yet, but he may find he needs to use them less and less from now on.
[1] Act 1 Sc 3 Merchant of Venice