Interim guideline to the standard for the use of a valid electronic signature

Published 20 May 2020

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Introduction

1. The Companies Office acceptable standard for electronic signatures can be found in:

2. Additional references include:

  • Contract and Commercial Law Act 2017;
  • Companies Act 1993; and
  • Companies Act 1993 Regulations 1994.

3. This interim guideline (“guideline”) to the standard for the use of a valid electronic signature on documents provided to the Companies Office (“standard”) provides additional guidance on the use of electronic signatures on documentation and information submitted to the Companies Office and describes the circumstances in which the Companies Office will accept documentation and information under an electronic signature due to the restrictions caused by the COVID-19 pandemic.

4. For the purpose of this guideline, an electronic signature is a secured authority that complies with the definition in section 209 of the Contract and Commercial Law Act 2017.

Purpose of the guideline

5. COVID-19 has introduced new challenges in meeting the requirements of the standard for all persons and entities who interact with the Companies Office (“customers”) who wish to submit electronically signed documentation and information to the Companies Office through Companies Office approved channels. These challenges are primarily due to remote working and self-isolation.

6. This guideline is intended to supplement the standard while the restrictions regarding the pandemic persist. It will continue to have effect until a notice of its revocation is published by the Companies Office on its website.

7. The contents of this guideline have been designed as an interim measure to address issues relating to the COVID-19 pandemic restrictions. The Companies Office will continue to monitor the situation and may issue further guidance if necessary.

Interpretation

8. Terms used in this guideline that are defined in the Contract and Commercial Law Act 2017 have the meaning given to them in that Act, unless otherwise stated.

Application

9. This guideline applies to:

  • Customers submitting documentation and information under an electronic signature to the Companies Office who, due to the restrictions caused by the COVID-19 pandemic cannot comply with the conditions for the presumption of reliability set out in sections 228(1)(a) to 228(1)(d) of the CCLA and also the requirements (and methods) for electronic signatures in the standard.

10. Customers may only use an electronic signature when submitting documents or information to the Companies Office where:

  1. they are using Companies Office online services; or
  2. they provide an electronic signature (whether directly or via an accountant, solicitor or other intermediary) using software that complies with the requirements set out in the standard and in this guideline.

11. The standard for electronic signatures is set by Part 4, Subpart 3 of the CCLA. All electronic signatures must comply with the CCLA, the standard and this guideline.

12. In accordance with section 228(1) of the CCLA, the means of creating the electronic signature must be linked to the signatory, or other authorised person, and to no other person.

13. Given the COVID-19 pandemic restrictions, and the issues with working remotely and self-isolation, many customers may not be able to satisfy the requirements of section 228(1) and the standard with regard to particular types of software used to electronically sign documentation. As a result, this guideline has been introduced to apply to:

  • Customers who, given the challenges encountered by the pandemic, cannot sign particular documentation to be filed with the Companies Office in a manner that would ordinarily comply with its requirements.

Exceptions to the presumption of reliability

14. Section 228(2) of the CCLA creates an exception to the presumption of reliability in section 228(1). Section 228(2) provides:

“Section 228(1) does not prevent any person from proving on other grounds or by other means that an electronic signature:

  1. is as reliable as is appropriate; or
  2. is not as reliable as is appropriate”.

Electronic signature

15. An electronic signature must be provided with the signatory's consent.

16. An electronic signature also verifies that the information was submitted by a known customer, or other authorised person, that the customer cannot deny having affirmed the document or information provided to the Companies Office and that the document or information was not altered in transit.

17. The signatory is responsible for safeguarding their authentication credentials and the management of delegations they authorise.

18. An electronic signature is the customer's verification of the authenticity and accuracy of the information or documentation submitted to the Companies Office.

19. An image of a signature that is simply inserted into a document (by cut and paste) will not be acceptable in any circumstances.

20. The following are examples of digital or electronic signatures that can be used by a signatory for certain documentation to be filed with the Companies Office:

  • Sign on glass signature on an iPad or stylus;
  • Any other biodynamic versions of a manuscript signature.

Customers who wish to rely on section 228(2)(a) of the CCLA

21. In circumstances where a customer cannot submit a document with an electronic signature in accordance with the standard and section 228(1) of the CCLA, the customer may rely on section 228(2) in submitting their document(s) to the Companies Office for registration.

22. In the event the customer relies on section 228(2)(a), the customer must, when filing the document(s) with the Companies Office, provide a cover letter or an email accompanying the documentation. This letter or email must record all of the following:

  • The reason(s) the customer cannot comply with section 228(1) and the standard. For example, that the customer cannot access an electronic signature software compliant with the standard;
  • The grounds (or means used) relied on by the customer to demonstrate that the signature is as reliable as is appropriate;
  • The documentation supporting the grounds (or means used) relied on by the customer in the paragraph above; and
  • Any other information that the customer considers would assist the Companies Office in determining whether or not the electronic signature is reliable as is appropriate for the purposes of section 228(2)(a).

23. For the purposes of clause 21 above, the documentation that the Companies Office considers to be acceptable, includes:

24. If the customer is submitting on behalf of a signatory, such as a professional adviser (solicitor, accountant or other professional adviser), a file note from this professional adviser, recording the date and time of a phone-call with the signatory noting that the signatory:

  • has signed the iPad or other electronic device; and
  • has signed using their usual signature; and
  • was not under any duress when they signed; and
  • intended to sign the particular document(s); and
  • authorises the file-note and any other supporting information to be provided to the Companies Office for the purpose of filing the particular document(s).

25. An acceptable form of photographic ID such as, a passport or driver’s licence. The passport should have the same signature as the electronic signature.

26. If the document(s) is presented by the signatory themselves for filing, then an e-mail from the signatory with a copy of a valid passport recording their signature.

27. A date and time stamp on the signature by the programme by which it was used to be created for the purpose of signing the document(s). For example, a sign-on-glass signature is similar to signing for goods delivered by a courier and a verification report is produced by that device.

Types of identification that is acceptable by the Companies Office

28. The types of photo identification that are listed below are acceptable:

  • a valid passport (New Zealand or overseas); or
  • a valid New Zealand driver’s licence.

29. For the purpose of this clause, “valid” means unexpired as at the date the documents are filed with the Companies Office.

Use of audio-visual technology

30. It is open to professional advisers as to whether for the purpose of clause 27 , they verify the signatory’s identity where it is not possible to meet face to face. (Examples of audio-visual technology that may be used, include Skype, FaceTime, Zoom, Microsoft Teams).

31. If audio-visual technology is used, the professional adviser must ensure that no-one else other than the signatory is present in the room when signing the document(s) and, if they have not known the signatory for more than 12 months, ask the signatory to hold up a copy of their acceptable photo identification while on camera.

The file note for the purpose of clause 23 should be modified to include that audio-visual technology was used.

Privacy

32. Any documentation provided to the Companies Office other than the document(s) that it is required by law to register, will not be publicly made available on the applicable register.

33. The Companies Office is subject to the Official Information Act 1982 and Privacy Act 2020. Any information or documents that are disclosed to the Companies Office by the customer may be disclosed by the Companies Office as a business unit of the Ministry of Business, Innovation and Employment pursuant to a request for information under the Official Information Act 1982 unless there are grounds under the Official Information Act 1982 to withhold any or all of the information requested.


 

Standard for the use of a valid electronic signature on documents

This standard provides guidelines on the use of electronic signatures on documentation and information submitted to the Companies Office and describes the circumstances in which the Companies Office will accept documentation and information under an electronic signature.

Last updated 22 December 2020