The electronic signature in trade relations

The increasing importance of digital communication means that an electronic signature (“e-signature”) is being used more and more frequently in commercial relations. At European and Belgian level, the legislator has established some types of e-signatures and the legal consequences associated with them. This article briefly explains the different types and some points of interest.

3 types of e-signatures

European legislation provides for three types of e-signatures, according to their level of reliability.

• The ordinary e-signature: data in electronic form which are attached to or logically associated with other data in electronic form and which are used by the signatory to sign; e.g. a website password, a PIN code, a scanned signature, an e-mail signature, etc.

• The advanced e-signature: (1) a mechanism that links the signature uniquely to the signatory, (2) on the basis of which the signatory can be identified, (3) with a high level of confidence and which the signatory uses under his sole control and (4) that allows to detect any subsequent change in the signed data afterwards; e.g. fingerprints or iris scans, SMS authentication, e-mail authentication, the ordinary signature via Adobe Sign (if the user does not have a qualified certificate himself), etc.

• The qualified e-signature: has the characteristics of an advanced e-signature, but in addition must be issued by a qualified trust service provider; e.g. the e-ID card with card reader, the “Itsme” app, the commercial providers on the ”Trusted List“ of one of the Member States of the European Internal Market.

Legal consequences of an e-signature

All forms of e-signatures described above are in principle legally valid, but there is a difference in their security level, i.a. regarding the identity of the signatory and the authenticity and integrity of the data. As a result, there is also a difference in their legal consequences. Depending on the importance of the documents to be signed, this requires some attention.

For example, the burden of proof concerning the validity of the ordinary and advanced e-signature will rest on the signatory, whereas a presumption of conformity applies to the qualified e-signature, just like the handwritten signature.

The overview below shows the main differences schematically:

	Ordinary	Advanced	Qualified
Valid signature	yes	yes	yes
Verification of authenticity of signature and of data integrity	no	yes	yes
Admissibility  as evidence in judicial proceedings (non-discrimination principle)	yes	yes	yes
Assimilation to a handwritten signature (assimilation principle)	no	no	yes
Automatic recognition in other Member States of the European Union	no	no	yes

Pitfalls

Using an e-signature generally has the advantage of being efficient and fast, but at the same time, some vigilance is generally recommended when communicating digitally. For instance, one should be aware that digitally exchanging messages is not always without obligation. The idea that one would only be bound once things are put on paper with a handwritten signature, is outdated. Indeed, the conditions of an ordinary e-signature are easily met, so that one may have signed something without fully realising it. Putting one’s name under an e-mail, for example, can already suffice in certain cases. After all, between (and against) companies, the system of free admissibility of evidence applies.

It is therefore advisable to handle digital messages with some caution. E.g., if one negotiates a contract by e-mail, one can clearly indicate on which points one definitely wants an agreement before there can be a deal, or one can indicate that one only wants to be bound once a formal contract has been drawn up.

Florence Fryges and Bruno Thoen
De Langhe Attorneys