18.03.2019.

Digital Mind

When and how to use electronic signatures? Digital signing FAQ – Part 1

We are constantly meeting private and public organisations in the region and discussing how to leverage the possibilities of digital signing in business processes and communication channels. While we discuss the rather technological aspects and how SigningServices solves them, questions related to the organisational and legal aspect sare always there. When and how to use electronic signatures? How electronic signatures can be used in multi-national organizations? What can be signed electronically and where it is enough with a click? What are other electronic signature technologies? These are few of questions commented by Liisi Jurgens - expert in IT and e-signing related laws.

In this article, Liisi Jurgens - an expert in data protection, IT and Telecom, EU and Competition Law - will share answers to questions such as what is an electronic signature? Which electronic signatures will have legal consequences? How to use electrically signed evidences in court?

What is an electronic signature? When and how to use electronic signatures?

The Internet does not know national borders. The foundation of a trustful digital environment is knowing who is the other party of a transaction. By nature, the anonymous Internet enables a fast, cheap and convenient way to communicate and make business. Through REGULATION (EU) No 910/2014 (mostly known as eIDAS), EU legislator offers its members and internal market trust in electronic transactions in the internal market by providing a common foundation for secure electronic interaction between citizens, businesses and public authorities. Electronic solutions, such as as digital signatures, get a legal meaning through eIDAS.

Which electronic signatures will have legal consequences?

An electronic signature intends to provide a secure and accurate identification method for transaction partners and third persons. Not every digital signature can be considered an electronic signature under the eiDAS. An electronic signature provides the same legal standing as a handwritten signature as long as it adheres to the requirements of the eIDAS. That’s way it is important to keep in mind that not every electronically given signature is a qualified electronic signature. For example, signatures which are given on a screen with a pen or finger are not handwritten signatures and also not a qualified electronic signature equal of a handwritten one, according to eIDAS. Digital signatures on a screen do not have any certificates and it is almost impossible to link a signature with a signer.

An electronic signature may have many levels of security. According to eIDAS, the strongest electronic signature is a qualified electronic signature which equals a handwritten signature. This means that it does not matter if the parties agree to sign a document in a traditional way by a pen on a paper, or will use some digital solution which fulfils requirements of a qualified electronic signature, according to eIDAS. A qualified electronic signature is created by using qualified signature creation device. All such devices which fulfil eIDAS requirements are listed in the European Trusted List which is maintained by The European Commission. Smart-ID, among other solutions, also fulfils necessary requirements and is listed as a qualified signature creation device.

If eIDAS provides requirements and trust levels for electronic signatures, then national laws of EU member states lay down rules for the electronic format and which type of transactions may conclude using electronic signatures e.g. be signed using an electronic signature.

How to manage electronic documents?

If in documents that are signed by hand, we can sate how many original copies have been signed in the document, then it is not possible to do so when it comes to an electronic document since there can be as many “original reproductions” as necessary.
In contract language, the word „written“ does not mean just a text which can be read on a screen or paper. If changes and amendments of a contract must be done in writing, then it means that those changes are valid when the documents are signed by the parties. Normally functioning enterprises must have a proper document management system for their electronic documents. A main contract with its annexes, changes etc. should be organized in a way which allows to easily find and understand which client or cooperation partner related documents, and in which format exist.

How to use electronically signed evidences in court?

If the is a court dispute regarding an electronically signed document, or when the original document is in electronic format, then there are two ways to investigate its content by a court:

  • (i) the document is printed out (if the document can be printed out) or
  • (ii) parties and the court examine the document on a device screen (a computer).

Technical parameters will be investigated only when the dispute and/or arguments of one of the parties involve arguments related to the technical arguments or one of the parties has submitted a counter-argument regarding the contestation of authenticity of documents. If an electronic evidence must be examined by the court in its original format, then during the examination, the judge will review the evidence using a computer.
As we already have technical solutions and legal environment to use electronic signatures to have secure digital communication then the next step is to just use those convenient opportunities to make business and document management easier and budget friendlier.* An electronic signature may have many levels of security. According to eIDAS, the strongest electronic signature is a qualified electronic signature which equals a handwritten signature. A qualified electronic signature is created by using qualified signature creation device. All such devices which fulfill eIDAS requirements are listed in the European Trusted List which is maintained by The European Commission. With among other solutions is also Smart-ID which fulfills necessary requirements and is listed as a qualified signature creation device.

About the author:
Liisi Jürgen heads NJORD Law Firm’s IT law practice. Liisi Jürgen is an attorney at law and a visiting lecturer at Estonia’s oldest and most established university – University of Tartu. Her main subject is E-Commerce and IT Contracts. Liisi Jürgen is specialized in legal issues regarding data protection, e-commerce, electronic signatures, authentication, consumer protection, product development. Liisi has advised clients on general corporate and commercial matters. She finalized her second Master’s degree in Law at the University of Münster in Germany in 2015. The topic of her thesis is Electronic Signatures according to the EU law. She has a Bachelor’s Degree and Master’s Degree in Law from University of Tartu.