The restrictions imposed in consequence of the COVID-19 outbreak have brought about implications in respect of the signing and witnessing of legal documents. In our previous Alert, we dealt with the considerations surrounding the use of electronic signatures in the execution of documents, as well as its practical implications. Even if it is legally acceptable for a document to be made in electronic form and signed by an individual using an electronic signature, the next topical question is whether it is possible to satisfy the witnessing and attestation requirements by wholly electronic means since requiring witnesses to be physically present during this period to observe such documents being signed may not be feasible.
 
In this article, we set out the temporary measures introduced by the New South Wales (“NSW”) Government to address this issue, and comment on the position in Malaysia under the Electronic Commerce Act 2006 (“ECA”) and highlight the considerations applicable to adopting similar measures here.
 
The NSW Regulation
 
The NSW Government recently enacted the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (the “NSW Regulation”) in response to the COVID-19 pandemic. Made under the Electronic Transactions Act 2000, the NSW Regulation allows the signing of legal documents to be witnessed using audio visual link. This has removed the need for the witnesses to be physically present and is clearly designed to reduce face-to-face interactions given the COVID-19 restrictions.
 
“Audio visual link” is defined by the NSW Regulation as “technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing”. This would include video conferencing technology such as Skype, WhatsApp, FaceTime and Zoom. Documents which can be witnessed in such a way include, among others:
 

Under the NSW Regulation, a person witnessing the signing of a document by audio visual link must:

as soon as practicable after witnessing the signing of the document;

 

It should be noted that traditional methods of signing and witnessing these documents remain valid while the NSW Regulation is in force.
 
The current position in Malaysia
 
Section 11 of the ECA recognises an electronic signature of the witness provided that the requirements under Section 9 the ECA are complied with. However, the ECA does not contain provisions similar to the NSW Regulation that expressly recognise the use of an audio visual link in witnessing the signing of legal documents.
 
There has been no indication of provisions similar to those in the NSW Regulation being introduced to address the hurdles of witnessing documents during the Movement Control Order (“MCO”) period.
 
The only guidance may be found in a recent Circular issued by the Bar Council (the “Circular”), which clarified their view that watching on a screen someone sign a document when the person signing is not in the same room as the witness is unlikely to be considered “in the presence of” and that a solicitor should not witness signatures via video conferencing given the risks involved and the uncertainty of the law.
 
Commentary
 
Whilst it is presently unclear whether the witnessing of a signature by video conferencing will be recognised as legally valid by our laws, the Circular indicates a more conservative stance against using such methods. Particularly, for the types of documents specifically excluded from the ECA, it seems unlikely that witnessing the execution of these documents via video conference would suffice. As mentioned, in our previous Alert, the ECA does not apply to specific transactions or documents such as powers of attorney, the creation of wills and codicils, documents relating to the creation of trusts and negotiable instruments and thus, such documents cannot be executed in electronic form if they are intended to be legally binding.
 
The Circular also points out certain risks involved in witnessing the signing of documents by video conferencing, which are worth repeating here. One, for instance, cannot be absolutely certain that the signatory is not under duress of somebody hiding behind the camera or outside the camera view. Moreover, it is difficult for witnesses to be sure that the document that is subsequently sent to them for attestation is the same document they saw signed on the screen. Note that under the NSW Regulation, the witness has to be “reasonably satisfied” that the document the witness signs is the same document, or a copy of the document signed by the signatory before signing although how this requirement should be satisfied remains unclear.
 
Thus, while allowing the electronic witnessing of legal documents being signed may help overcome the difficulties brought by the restrictions imposed during the MCO period, these risks should be formally addressed before allowing such method in Malaysia. The requirements and procedures applicable to determine the validity of electronic witnessing as well as the type of documents signed that can be witnessed in such a way should be specified.
 
If you have any queries, please contact Jillian Chia (jc@skrine.com), Partner, or Natalie Lim (natalie.lim@skrine.com), Partner, of Skrine.