At a time when more and more aspects of our lives are being digitalised, the electronic signing of documents is becoming increasingly important. In this article, we answer a basic question: Is an electronic signature as binding as a handwritten one?
Characteristics of a handwritten signature
A handwritten signature is the customary form of confirming and expressing a person’s will. Its authenticity and binding nature are confirmed by the very presence of the signatory when signing the document, as well as by subsequent methods of verification – for example, certification of the signature by a notary. Despite its long history of use, the term “handwritten signature” is not expressly defined in our legal system, so we rely mainly on case law and established practice.
Characteristics of an electronic signature
An electronic signature likewise serves to express the will of the signatory, but in a digital environment. We can say that it is the digital equivalent of a handwritten signature.
Legal regulation of electronic signatures
The legal regulation of electronic signatures is contained mainly in Regulation (EU) No 910/2014 of the European Parliament and of the Council, also known as the eIDAS Regulation, which provides the basic legal framework at the level of directly applicable European Union law. In Slovak legislation, it is then mainly Act No. 272/2016 Coll. on Trust Services for Electronic Transactions in the Internal Market and on amendments to certain acts, which governs the conditions for the provision of trust services.
Different levels of electronic signatures:
The eIDAS Regulation distinguishes three levels of electronic signatures, each with different technical and legal requirements and different evidential value in legal relationships:
An electronic signature “means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”
We understand it as the basic form of electronic signature, which has no specific technical or security requirements. It is also referred to as a “Simple Electronic Signature”, from which the abbreviation “SES” is derived to denote this level of signature. In Slovak terminology, we speak of a so-called “simple” electronic signature. In practice, we encounter this type of signature, for example, when an e-mail is signed simply by typing the sender’s name and surname, or when clicking the “I agree” button in a document or form, e.g. when ordering goods from an e-shop.
An advanced electronic signature “means an electronic signature which meets the requirements set out in Article 26” of the eIDAS Regulation
These requirements include being uniquely linked to the signatory, which must make it possible to identify the signatory; the signatory has the means of creating it under their sole control; and any subsequent change in the data is detectable.
This signature offers a higher level of trustworthiness and security than a “simple” electronic signature, but this level of signature still does not meet all the legal requirements to have the same legal force as a certified handwritten signature. The designation “AES” comes from “Advanced Electronic Signature”. In practice, we may encounter this type of signature, for example, when signing business documents within companies or when using signing platforms whose security is based, for example, on verification via the signatory’s e-mail address.
A qualified electronic signature – meets the requirements for an advanced electronic signature and, in addition, must be:
- created by a qualified electronic signature creation device (e.g. a chip card), and
- based on a qualified certificate for electronic signatures;
The certificate is part of the qualified signature and ensures that the document was really signed by a specific person and not by someone else.
This signature provides the highest level of trustworthiness and is recognised in all EU Member States as a full substitute for a handwritten signature. The customary designation “QES” is derived from “Qualified Electronic Signature”. In practice, we encounter qualified electronic signatures, for example, when using the Slovensko.sk portal, where documents are signed using an identity card with a chip (eID) together with entering a security code (BOK).
The e-signature used on the Slovensko.sk portal is a qualified electronic signature, referred to as KEP, and under the e-Government Act it is one of the ways of signing an electronic submission. If such a signature is supplemented by a qualified time stamp, it also has the legal effects of an officially certified signature, similar to a signature certified by a notary.
Legal effect of an electronic signature
In terms of legal effect, it should be stressed that the eIDAS Regulation provides that an electronic signature may not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in electronic form or that it does not meet the requirements for qualified electronic signatures.
It follows that an electronic signature is legally relevant provided that other conditions are met (e.g. proof of the identity of the signatory, integrity of the document).
Nevertheless, only a qualified electronic signature (QES) automatically has the legal force of a handwritten signature: “A qualified electronic signature shall have the equivalent legal effect of a handwritten signature.”
It should be noted that where legislation refers to a “guaranteed electronic signature” (zaručený elektronický podpis), this means a qualified electronic signature. This is a change in terminology that occurred with the adoption of the eIDAS Regulation.
Recommendation for practice
When signing legally significant documents, we recommend giving preference to a qualified electronic signature (QES). Lower forms of electronic signature are legally relevant, but in the event of a dispute there is a risk that they will be challenged, especially as regards proof of the identity of the signatory (it may be objected that the identity of the signatory is disputed, and evidence will have to be taken to prove whether the signature was really made by the specific signatory).
On the other hand, a qualified electronic signature provides the highest degree of legal certainty, as by law it has the same effect as a handwritten signature. As a result, its use is suitable and safe also when concluding contracts, performing legal acts or making official submissions. Thanks to the technical conditions for its creation, the possibility of objecting that the signature was not actually made by the designated signatory is in principle excluded.
Conclusion
Digitalisation also affects the signing of documents, and electronic signatures are increasingly becoming a common part of legal acts. In order to maintain legal certainty, it is therefore important to choose the right form of signature according to the nature of the specific document and not to underestimate the differences between the individual forms of signature.
