Six e-Consent Myths (and Why They’re Not True)

E-consent (i.e., consent given electronically) has been a hot topic in recent years. But with so much information flying around, it can be hard to separate fact from fiction.

Here, Sheridans Associate Sarmad Saleh shares some common e-consent myths and why they’re not true.

All agreements need wet-ink signatures

Given that most agreements don’t even need to be in writing to be binding, there’s no specific requirement for such agreements to be signed.

Where agreements are signed, the point of the signature is to evidence the signatories’ agreement to be bound. As e-signatures and e-consents are just tools which facilitate this, they’re just as valid as wet-ink signatures in most situations.

There are some select documents (e.g., land transfer documents and certain documentation that needs filing with HMRC) where the jury is still out and it is therefore safer to err on the side of caution and rely on wet-ink signatures as opposed to e-signatures. However, in most instances, e-signatures are sufficient to bind the parties.

E-consent can only be used for non-contractual documents

Some people think that e-signatures and e-consents can only be used for non-contractual documents, such as sickness declarations. However, as discussed above, e-signatures are sufficient for most contracts and e-consents are also frequently used in many contexts where there is no real or valuable form of IP or assets that need to exchange hands.

E-contracts aren’t enforceable

For a contract to be enforceable, the following requirements must be met:

• There must be a clear, precise offer which can be accepted.
• There must be unequivocal acceptance of the offer.
• There must be consideration (i.e., someone must get something for something). This doesn’t have to be money.
• There must be certainty of terms (i.e., terms can’t be left as “to be confirmed”).
• The parties must have capacity, which means they must be of legal age and sound mind (particularly important when dealing with minors).
• There must be an intention to be legally bound (e.g., if terms remain “subject to contract,” it can be argued that the intention to be legally bound is not yet present).

If all of the above requirements are met, a contract will be binding and enforceable, regardless of whether it’s oral, in paper or in the form of an e-contract.

E-signatures are only valid if there’s an authenticity certificate

Authenticity certificates (such as those issued by DocuSign) have good evidential value in case of any doubt over a signature’s validity or the identity of the signatory. However, under English law, authenticity certificates aren’t a requirement to give effect to an e-signature.

A tick-box isn’t enough to bind a party

So-called “click wrap agreements” (typically online agreements where a party ticks a box and thereby agrees to be bound by the terms of sale or purchase) have been used for a long time and can be enough to bind a party in many cases.

When buying goods online, if you tick a box saying, “I agree to be bound to the terms of the sale,” you will be bound. In the same way, e-consents (tick-boxes accompanied by a statement to be bound and some other material which enables the party to be identified) can be enough to bind a party.

Parties can’t agree terms via email

Parties can indeed bind themselves via email. In one case, the court found that a lawyer had bound a client to an agreement by writing “confirmed” and including their automatic email signature.

Because of this, when conducting pre-contract negotiations or creating a deal memo, it’s a good idea to state that everything is “subject to contract” so that you don’t accidentally bind yourself too soon.

E-consent can’t be used for data processing

A signature (whether wet ink or digital) isn’t necessary to obtain explicit consent to process someone’s data. As with most agreements, you just need evidence of the individual’s explicit consent, which can take various forms.

For more information on contracting crew in the UK, see Getting your crew contracts in place: A guide for UK productions.