Digital assets in Scots private law: Consultation - Scottish Government analysis

3. Key findings from the analysis of responses

3.1. Consultation findings

Stakeholders from both the legal and financial services/fintech sectors overwhelmingly supported that primary legislation is the most effective way to resolve uncertainty regarding the status of digital assets in Scots private law. Only one individual disagreed, while two others were uncertain. This was the foundational question of the consultation, with the remaining twelve questions exploring key aspects of potential future legislation, such as defining statutory characteristics, rules for transfer of ownership, as well as if other potential provisions, not specified in the consultation, should be considered.

There was some divergence in responses regarding the scope of potential future legislation, particularly in terms of the recommended legal classification and defining characteristics of digital assets. Two-thirds of respondents supported a narrow scope, limited to a statutory definition of digital assets as property, rules governing the transfer of ownership, and provisions confirming that the principles of Scots private law continue to apply to digital assets. In addition, some respondents expressed a desire that a clear definition of digital assets be included in potential future legislation (distinguishing which digital "things" count as assets and excluding items like emails or social media posts, for example) and to recognise that control over a digital asset can secure a pledge without needing formal registration.

There was broad agreement that digital assets should be classified as incorporeal moveable things. However, the Faculty of Advocates provided a well-reasoned position for classifying digital assets as corporeal moveable things, which has been taken into consideration.

On ownership and the transfer of ownership, most respondents agreed that control over a digital asset should generally be the basis for establishing ownership. Similarly, there was strong support for the voluntary transfer of ownership requiring the transfer of control over the digital asset from the current owner to another person, coupled with the current owner intending to transfer ownership to that other person.

Finally, views were mixed on whether possible future primary legislation should include additional substantive provisions within the devolved legislative competence of the Scottish Parliament, beyond those outlined in the consultation. Just over half of respondents agreed, while six disagreed, three were unsure, and one did not answer.