Video-conferencing technology and the witnessing of documents
ADLS’s Property Law Committee spent some time last year considering the possible use of technological advances to make the practice of the law easier. In particular, questions arose as to whether videoconferencing, or even Skype, could be used to assist with the witnessing of documents. The Committee commissioned four Equal Justice Project students who have been sitting as student representatives on the Technology & Law and Property Law Committees to research these questions further and look at approaches taken elsewhere. The following is the result of their labours, compiled and edited by two of those students, Jason Kim and Eugenia Woo.
Throughout history, from the advent of the printing press to the widespread availability of internet access, information and communications technology has helped facilitate greater access to the law.
One area of law in particular, however, has caused some consternation amongst practitioners – the use of videoconferencing technology in witnessing the execution of documents.
This technology could help make the process of document execution easier and more accessible. For instance, in Australia, videoconferencing has been used to provide remote Aboriginal communities with the ability to execute documents, despite the geographical barriers which would otherwise make this a more onerous (and expensive) task.
However, the law (having not anticipated such technological developments) is quiet as to the circumstances when this kind of witnessing will be legally valid. Generally, legislation refers to the need for “presence”, without stipulating whether this requires physical presence, or if virtual presence would suffice.
While New Zealand’s Evidence Act 2006 does provide for alternative methods of giving evidence in court (including through videoconferencing), there has yet to be definitive acceptance of the practice of witnessing signatures in this way.
Other jurisdictions, however, do provide some (if limited) guidance as to how the law might treat such agreements.
The law in the United Kingdom on allowing videoconferencing for witness testimony in a trial appears to be well-settled and the courts generally tend to favour allowing it. The landmark case on this issue is the decision from Polanski v Conde Nast Publications Ltd  UKHL 10 (HL), where a three to two majority of the House of Lords applied part 32.3 of the Civil Procedure Rules (the rules governing allowance of videoconference testimony). Almost all the case law following Polanski has proceeded on the basis that, as a matter of public policy, giving evidence by videoconferencing is preferable to giving no evidence at all. Although these guiding principles were applied in respect of giving witness testimony, and not necessarily witnessing a signature, it is possible that the same principles may guide the courts here.
In fact, the High Court of Justice in the case of Re ML (Use of Skype Technology)  EWHC 2091 (Fam) allowed the signing of adoption consent forms to be witnessed via Skype. The process satisfied the court that the parents had freely and unconditionally consented to the adoption, and also that they had received no financial inducement. However, it has to be noted that Re ML was a very unusual and fact-specific case, and that further support for signing documents over Skype has not been expressed by the courts.
In another decision by the same judge (R v C and S  EWHC 1295 (Fam)), the court refused an application for taking evidence by Skype, rather than traditional videoconferencing (indeed, the judge noted that it will more often be the case that Skype will not be allowed). This is because Skype’s technical limitations (including problems in everyone seeing and hearing the picture) make it inappropriate for the court environment. It was also noted that the judge would not be willing to use Skype if there was any alternative.
However, in the case of Belkovic v DSG International Plc  NIQB 25, Skype witness evidence was permitted. While the approach adopted in Re ML was kept in mind, this was a vastly different case and (as noted) the use of videoconferencing technology for witness testimony is already an accepted area of law in England and Wales.
The consideration of Re ML in Belkovic, however, may suggest that the principles governing Skype witness testimony and Skype witnessing of signatures could have some overlap. However, whilst noting that convenience should not necessarily be the determinative factor, in civil trials where both parties consent to its use it could be used to make the process less costly for the parties.
Meanwhile, Canada has directly rebuked the practice of witnessing signatures via videoconferencing. In First Canadian Title Company Ltd v The Law Society of British Columbia 2004 BCSC 197, it was held that videoconferencing fell short of the requirements for a lawyer to witness documents as an officer under the Land Title Act (British Columbia). The biggest concerns raised were integrity of the document and ability to verify the signatory’s identity. A lawyer cannot know for certain what document the signatories are signing, and whether it is the same as that being executed by the other party.
However, there are safeguards that could be put in place to mitigate such concerns. For instance, in the case of a paper transaction, the signatories might hold up each page to the camera as it is signed. Other technologies (such as email or fax) could also be sued as safeguards, although these may be less secure and vulnerable to hacking. Fortunately, there have been developments in encryption software which can be used to ensure the same document is displayed to all parties involved in an electronic transaction.
The courts in Australia generally support the approach of the decisions from England and Wales. The New South Wales Law Reform Commission has helpfully published a report explaining the rationale for the requirement for joint witnesses in wills. The report stressed that both witnesses must be present at the same time, primarily because they ought to be able to pick up on facts relevant to issues of the testator’s capacity, understanding or freedom from pressure. The report places greater import on the timing of witnessing than its geography. With this being the rationale for presence requirement, in principle, virtual presence would not appear to be any less effective at achieving its purpose.
New Zealand’s Wills Act 2007 has a provision that may be analogously concerned with the concept of presence being a requirement for signatures. Section 11(4)(a) of the 2007 Act, as amended in 2012, requires at least two witnesses to be present together in the will-maker’s presence when the will-maker signs the will, directs another person to sign the will on their behalf, or acknowledges that another person directed by the will-maker signed the document earlier in his presence. One of those three requirements has to be met in order for the will to be valid.
In Bonner v Evans CIV-2009-404-4527, 17 November 2009, the High Court set out the relevant tests that would satisfy the presence requirement in the Wills Act, i.e.:
(i) whether the witnesses could have seen the testator sign if they had chosen to look; and
(ii) whether the testator could have seen the witnesses sign had they chosen to look.
Presence in terms of witnessing signatures for wills requires visibility, and there is some uncertainty as to whether blind witnesses are competent witnesses. For an effective acknowledgement, the will-maker must be in the same room as the witnesses and must ensure the witnesses have the opportunity of seeing the signature or indicate to the witnesses that the signature was made by another person at the will-maker’s direction and in his or her presence.
Although New Zealand has a presence requirement when it comes to the practice of witnessing wills, there is no explicit presence requirement for otherwise signing other documents. The argument could run both ways. On the one hand, one could argue that the presence requirement is outdated in an age of e-dealing, online transactions and software allowing people to sign documents on an iPad well away from the eyes of a lawyer. On the other, arguments can also be made for the presence requirement as it reduces the possibility of coercion or, in a worst case scenario, identity fraud.
In all transactions, lawyers must be confident that clients are entering into the agreement freely and willingly. As witnesses, they must ensure that there is no coercion or physical threat present which may later invalidate the agreement. However, direct threats might not be visible when witnesses are relying on video link to communicate. Neither party can visualise the entire room at the other end. As a result some argue that the process could therefore be open to manipulation and agreements struck under such circumstances therefore vulnerable to later being attacked for lack of validity.
A further concern is whether the use of videoconferencing might compromise the privacy of the exchange between lawyer and client. Aside from the possibility of their communications being accessed or recorded by others, it may be that, without knowing who else was present in the room at the time, either party could unwittingly disclose information that is overheard by others.
One reason why legal transactions (like those concerning relationship property) are conducted in person is to ensure understanding. The Property (Relationships) Act 1976 expressly provides that lawyers who witness the signature of a party must certify that they explained to the party the effect and implications of the agreement. It may be the case that, by conducting this process via video link, practitioners are unable to pick up on social cues which might indicate that one or both of the parties may not truly comprehend the effect of what they are signing.
In New Zealand, there are known methods of mitigating some of the risks associated with videoconferencing technology regarding the verification of a signatory’s identity. One of those methods is RealMe – a service created by the Department of Internal Affairs and New Zealand Post that has the backing of the government. RealMe is currently being used by Work and Income’s secure online services, and it is nearly impossible for someone’s RealMe account to be hacked because of the service’s comprehensive authentication system. This government-approved service serves as an online guarantee of identity through its verified accounts, and is poised to eliminate some of the uncertainty surrounding the signatory procedures in this technological age.
Currently, the greatest risk in this area of law for practitioners is the uncertainty which they will face when deciding whether or not to go ahead with Skype witnessing. Whilst many practitioners are in favour of using Skype for this purpose, the legal position is unsettled and has not been sufficiently tested by litigation. As such, while Skype witnessing does not (in principle) appear to present many difficulties, there will be some level of risk which practitioners should be aware of when proceeding with this course.