Tennessee Enacts Provisions Regarding its Online Notary Public Act
Tennessee has passed House Bill 1794 which amends Tennessee Code Annotated, Section 66-22-10. HB 1794 provides for the online notarization of documents or instruments by a notary public who has been appointed as an online notary public by the Secretary of State.
Section 66-22-10 has been amended to include an electronic signature as defined in Section 8-16-302 in the definition of “original signature.” Amended Section 66-22-10 allows a principal to appear before an online notary public to make an acknowledgment using an interactive two-way audio and video communication system that meets the requirements for online notarization under the Online Notary Public Act pursuant to Title 8, Chapter 16, Part 3. The online notary taking the acknowledgement must state in the acknowledgement whether the principal personally appeared by way of an interactive two-way audio and video system. An acknowledgement taken by means of a two-way audio video system must amend the acknowledgement form to read “personally appeared before me by audio-video communication” or “personally appeared by audio-video communication” or “before me appear by audio-video communication” rather than “personally appeared before me” or “personally appeared” or “before me appear” in order for the acknowledgement to be compliant. The Secretary of State is charged with the promulgation of rules necessary to implement and facilitate online notarizations.
In order for a notary public to be commissioned as an online notary public, the applicant must satisfy the requirements for appointment as a notary public and submit an application in the prescribed form promulgated by the Secretary of State. The application must include the applicant’s legal name, the physical address of the applicant, a valid email address, a valid telephone number, the county where the notary was commissioned, the commission date, the commission expiration date, and any other information required by the Secretary of State.
An online notary public may perform notarial acts under these provisions without regard to the physical location of the principal so long as the notary is physically in the state of Tennessee. The online notary is required to maintain a secure electronic record of electronic documents notarized including the date and time of notarization, the type of notarial act, a description of the electronic document, the name and address of each principal involved, evidence of identity of each principal and a recording of any video and audio that is the basis of the satisfactory evidence of identification. The electronic record must be maintained for at least 5 years from the date of the transaction requiring notarization.
When performing an online notarization, the online notary shall verify the identity of the person creating an electronic signature either by the notary’s personal knowledge of the person or by remote presentation by the principal of a government issued identification.
Amended Section 8-16-112 states that an electronic signature or a digitized image of a wet signature of the online notary satisfies the existing requirement of a notary public’s signature in ink or by hand and seal. Further, the requirement of an official seal or stamp is satisfied by an electronically transmitted document so long as the document reproduces the required elements of the seal.
The provisions of HB 1794 are effective July 1, 2019 and the full text of the bill may be found at: https://legiscan.com/TN/text/HB1794/id/1696649/Tennessee-2017-HB1794-Draft.pdf
Adam Faria, JD, is a regulatory compliance consultant with CLA. He is a graduate of Northeastern University and earned his juris doctor at Suffolk University Law School. He is admitted to the bar in Massachusetts and New Hampshire.
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