Electronic and remote notarization
It is standard operating procedure in most commercial, financial and banking transactions that documents that are required to be submitted by counter parties have to be signed under oath before a notary public or notarized.
The idea is, the signature and notarial seal of the notary on the document may be considered proof that the person who signed it did it in person and that it was his or her voluntary act or will. In effect, that adds credibility to the document.
When the Supreme Court laid down the rules on notarial practice in 2004, electronic or digitally produced written instruments and signatures were still in their infancy. They did not enjoy a high level of public trust compared to paper-based commercial and legal forms.
Not anymore. With the introduction of the internet and the development of systems and procedures that make good use of its facilities, not to mention heightened consciousness about environmental protection, the reliance on hard copies has considerably decreased and internet-based exchange of documents has gained exponential preference.
In light of this development, the court recently issued the rules on the “… electronic notarization of electronic documents through In-Person Electronic Notarization and Remote Electronic Notarization” in A.M. No. 24-10-1-SC.
An electronic document is a written instrument that (a) by which a right is established or (b) an obligation is extinguished or (c) by which a fact may be proved and affirmed, that is “received, recorded, transmitted, stored, processed, retrieved, or produced electronically.”
Scanned copies of paper documents are also included in that enumeration. However, the new rules will not apply to notarial wills, deposition taking and paper documents with wet signatures or marks. They will continue to be governed by the 2004 rules.
(A wet signature or mark is one that is made on paper using a pen, seal or other identifying mark.)
In a nutshell, the notary is required to verify the identity of the person or persons subject of the notarization who affixed an electronic signature through at least one of several government-issued identification cards and confirm the voluntariness of their act in his or her presence.
When the notary has completed that process, he or she can perform the required notarial acts for the document.
A similar procedure, but without the physical presence requirement, has to be observed for remote electronic notarization or the notarization of electronic documents through the use of a facility that enables the signatories to the document to appear virtually before the notary.
The video conference should enable the notary to smoothly undertake the identification and confirmation processes earlier mentioned.
It is essential that the notary ascertain that all the parties are present in the Philippines by accessing the geolocation function of that facility and require them to disclose their actual physical location in the country while remotely participating in the notarization process.
If they are out of the country, the process can be conducted within the premises of the embassies or consular offices (including those of honorary consults) of the Philippines abroad.
Any notarial act performed in accordance with the new rules shall have the same validity, force and effect as any other notarial act performed under the 2004 rules.
Note that before a notary can engage in electronic and remote notarization, he or she has to apply for accreditation with the court and prove his or her capability to undertake that work.
Corollary to that, the court shall designate an electronic notary administrator who shall keep a register of and supervise the operation of accredited electronic notaries.
What’s more, the electronic facility through which the verification process should be conducted by the notary has to be likewise accredited by the court. The costs for the use of that facility would, no doubt, be included in the notarial fees.
