Everyone will be familiar with the general idea of ‘getting it in writing’. We are usually referring to recording an agreed position between parties. ‘In writing’, however, is a constantly evolving legal concept.
How are we to know with any certainty what amounts to written communication?
The English law position on what amounts to ‘writing’ is provided by the Interpretation Act 1978 (the Act) and includes:
Typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly.
Interpretation Act 1978, Schedule 1.
The problem with the above definition is that it does not appear to cater for the increasing use of electronic communication, including email. In 2001, the Law Commission considered email in light of the Act and determined that the definition of writing encompassed email communications on the basis that the natural meaning of the Act would include any updating of its construction to reflect technological developments.
In the Law Commission’s view, the contents of an email would be considered ‘in writing’ on the basis that the Act requires that the delivery method reproduces words in a visible form. The challenge then is to prove that an email has been sent in a form that is visible to the recipient.
The meaning of being ‘in writing’ will continue to evolve along with technological developments that allow parties to communicate in different ways (in the last three years, courts in both the UK and abroad have accepted service of proceedings on defendants via social media such as Twitter and Facebook in circumstances where traditional methods have failed). The fundamental point of the concept remains, however, that ‘in writing’ means ensuring words are reproduced in visible form.
As evident in agreements produced by the Loan Market Association, it is still common practice to identify acceptable forms of communication as being ‘in writing’ to avoid reliance on the legal definition of the concept. This will determine whether mediums such as fax and email are acceptable forms of notice, along with more traditional methods such as post and hand delivery.
An extension of the debate on email amounting to writing is the use of e-signatures, and how such signature is verified without sight of the original ‘dried ink’ signature made at the end of an agreement. The Law Commission and academic opinion have both suggested ways in which requirements for a traditional signature can be satisfied to match technological advances, including clicking ‘I accept’ on the purchasing page of a website – a perfect example of an e-signature that helps modern commerce comply with traditional contractual principles.
Case law has supported the acceptance of agreements by electronic signature. In a recent case* Justice Popplewell made the following comments:
Generally speaking a signature is the writing or otherwise affixing of a person’s name, or a mark to represent his name, with the intention of authenticating the document as being that of, or binding on, the person whose name is so written or affixed. The signature may be affixed by the name being typed in an electronic communication such as an email…. Section 7 of the Electronic Communications Act 2000 recognises the validity of such an electronic signature by providing that an electronic signature is admissible as evidence of authenticity.
Parties should take note of what amounts to notice in writing under their agreements, particularly where email would be the first recourse of both parties, if given the opportunity. They should also be aware of what will amount to a signature on electronic communications and be sure that anything that could be mistaken for a signed electronic communication remains subject to a final contract.