The electronic signature legal framework
Since the beginning of the 21st century, any digital statement in writing can be considered as enforceable by law, together with electronic signature. Some European States such as France or Germany anticipated such an evolution on their own legislation, but soon all European Union State-members were to transpose a directive in order to harmonize their legislations on that subject.
Throughout a “mandate” given to a “trusted third party”, some companies got a hold on the electronic signature market to then offer more intuitive, global and warranted e-signature solutions.
After a listing of all e-signature mechanisms (I), we will then establish a brief legal spectrum of worldwide electronic signature laws (II).
© iCreative3D – Shutterstock.com
I/ E-signature types:
- Simple electronic signatures
E-signature in its simplest form is an electronic data merely joined to another electronic data in order to be used as a certification method. For instance, a PDF contract in which was added a scanned handwritten signature or a tickbox next to a declaration.
- Advanced electronic signatures
It defines a process, which does not necessarily lie in the use of a particular technology, generating an enforceable electronic signature and: can identify the user, is unique to them, and is under the sole control of the user (i.e. confirmation with an SMS, PIN code, certification via a phone call, geolocation,…).
- Qualified electronic signatures
Or “qualified certificates” is an advanced electronic signature together with a digital certificate encrypted by a secure signature creation device (i.e. smart card).
- Electronic seals
A novelty introduced by a new EU regulation. This allows companies (i.e. “legal persons”) – public or private – to electronically mark their document with their own seal. Any seal could then be verified on a governmental website. An efficient tool to fight for instance false documents on the Internet such as phishing emails.
Timestamping is mechanism consisting in associating date and time to an electronic data. Whereas e-signature allows you to mark a digital document with your name, timestamping will certify the integrity of this document as such, in a way that it would become invalidated if the contents are changed. This is often used simultaneously with e-signature, namely as an advanced electronic signature extra process.
II/ E-signature laws
- In France
Since a 03.13.2000 Act (loi no 2000-230 du 13 mars 2000 portant adaptation du droit de la preuve aux technologies de l’information et relative à la signature électronique), e-signature proves the same legal value as a handwritten signature. This law also recognise the enforceability of digital writings. An electronic signature process is considered valid until proved otherwise (art. 1316-4 of the Civil Code), but a “qualified certificate” grants enforceability for sure. Since 2006, signature through the use of a “tablet” has also been recognised as valid.
- European law
- The Electronic Signatures Directive of 1999 (1999/93/EC)
The Electronic Signatures Directive has set the bases of the current e-signature laws in Europe. Since it is a directive, each State-member transposed it his own way and some contradiction were to be found during international litigations, namely towards Common Law systems. Therefore, a new framework for e-signature was introduced.
- The new Electronic Identification and Trust Services (EIDAS) regulation of 2014
Adopted the 23rd of July 2014, this regulation ought to become binding the 1st of July 2016 in all State-members. This will render any previous law obsolete and set a modern and global legal framework in all EU. This regulation also deals with the fact of emerging – even well-set – e-signature companies. It also created and enacted the new “electronic seal”.
- USA “ESIGN” law:
The Electronic Signatures in Global and National Commerce Act dates back to the year 2000. It states that : “A document or signature cannot be denied legal effect or enforceability solely because it is in electronic form”, provided that certain terms are met such as intent to sing, record retention, legality of electronic signature. What is interesting is that this law anticipated international contractual relation and added an extra condition for the validity of international contracts signed via electronic signatures. The ESIGN Act promotes the use of e-signatures in international business transactions: ”so long as all parties have the ability to use their preferred authentication technologies and still have the legal recourse to prove the validity of a transaction in court if the need arises”.
Supposedly, any electronic signature can be considered as valid by the judge. Although, in an era where fraud and false identity became a constant threat, the value and importance of a contract could require a more drastic identification. Globalisation of trade and evolution called for such an innovation and for fifteen years now, worldwide laws have tried and encouraged the use such methods.