Written form and signature in the digital age

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The Civil Code, unlike many other laws, does not contain a definition of a handwritten signature. However, this brings many complications in practical life, as persons acting in electronic form are often not sure exactly how to proceed in legal proceedings. What regulation of the form and signature does the Civil Code contain?

In general, a legal act may take any form, unless otherwise stated. The signature can then be replaced, if usual, by mechanical means (e.g. signature stamp). According to the courts, the signature must be placed after the text which it certifies, or it must be clear from it that it also confirms the content that follows it.

In the case of electronic legal proceedings, an act made in writing can be considered an act that allows capturing the content of the meeting and the identification of the acting person and contains the electronic signature of the person. At the same time, opinions are beginning to assert themselves that this is, for example, communication via an e-mail box, but it is necessary to agree between the parties on the use of specific e-mail addresses so that it is easy to identify the acting persons. When sending by fax, it is necessary, for example, to sign the document, which again allows the identification of the acting person.

In legal proceedings carried out by electronic means, the Civil Code refers to other legal regulations. This is the EU eIDAS Regulation and the related Act on Trust Services. These distinguish (sorted by the trustworthiness of the signature from least to most trustworthy) (a) electronic signature (so-called “plain”); (b) advanced electronic signature; (c) an advanced electronic signature based on a qualified certificate for electronic signature; and (d) a qualified electronic signature. Only a qualified electronic signature has the same effect as a handwritten signature.

Where the body acts vis-à-vis a public authority, it shall use either an advanced electronic signature based on a qualified certificate or a qualified electronic signature. If legal acts are carried out by public authorities, they must always use a qualified electronic signature. If none of the legal acts listed above are concerned, any type of electronic signature can be used.

The definition of a “simple” electronic signature also satisfies the mere indication of the name and surname in the text of the electronic document. Its legislation could thus give the impression that if someone drew up a document with someone’s name at the end of the document, the document would be considered to have been signed by him. That is not the case. The already mentioned provision of the Civil Code, which states that it is necessary to determine the acting person, applies. Thus, the electronic signature must identify the person and allow the verification of his identity. It is therefore possible to consider scanning the handwritten signature attached to the data message, using the agreed password, or otherwise arranging between the parties.

A specific situation is the area of data boxes, because if you act through them, the act is considered to have been signed by you, even if the document is not signed at all.

In conclusion, with regard to case law, which is sometimes complicated or slightly contradictory for electronic signatures of a lower degree of trust, we can only conclude that if you want to ensure that your electronic legal act is valid, you can only recommend using electronic signatures of the highest possible degree of trust, or act through a data box. However, this does not mean that it will not be valid when using less trustworthy electronic negotiations, but it will always be necessary to properly evaluate the circumstances of the case, which in the event of a dispute can only be done by a court.