The legal, binding value
of electronic signatures
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The E-Signature is revolutionizing numerous sectors and professions. The time and cost savings it offers justify the change of habits of an ever-increasing number of professionals.
Before implementing this transformation, it is important to ensure the compliance and legal value of the electronic signature. To do this, this tutorial will help you understand the legal framework and rules that give electronically signed contracts their legal and probative value.
The electronic signature in the European law
First off, since 2000, the law has established the legal validity of e-signatures as a general principle.
The legal effect and admissibility of electronic signatures is evidence in court, and are therefore established by law. They cannot be denied on the sole ground that the signature is electronic or if it does not meet the requirements of a qualified electronic signature.
"When it [the signature] is electronic, it consists of the use of a reliable identification process guaranteeing its link with the act to which it relates" art. 1367 of the French Civil Code.
Article 1367 of the Civil Code, which establishes this principle, was amended by Decree No. 2017-1416 of 28 September 2017 (in French), to bring it into line with the European eIDAS Regulation. This regulation, which has been applicable throughout Europe since the summer of 2016, has made it possible to standardise the rules on electronic signatures in order to promote the digitization of cross-border transactions. This provides the world's most advanced legal framework for electronic signatures and is inspiring many other countries due to its excellent level of reliability.
Electronic signature levels
Once this general principle has been established, it is useful to go into detail about the levels that exist of e-signatures in the eIDAS Regulation and in practice. Indeed, depending on the degree of legal force required, more or less binding techniques can be put in place.
The table below summarizes the existing electronic signature levels, and their ETSI standards.
Simple signature
This level covers all electronic signatures that do not fall under the other categories. It provides no guarantee to prove the validity of the signature.
Advanced signature
This level, defined by the eIDAS, requires identification of the signatory by an approved authority, which must issue a nominative electronic signature certificate of LCP (light) level if this identification is done remotely and QCP (qualified) if it is done face-to-face.
Certified signature
This level is not defined by eIDAS, but is widely used in practice as it relies on eIDAS certificates to secure the evidence of signature validity. It consists of sealing and time-stamping the signed document in accordance to the rules of building evidence on the signatory’s identity and conclusion of the contract, all with an eIDAS qualified QCP level certificate in the name of the trusted third party who collected them.
Qualified signature
This level, defined by the eIDAS, is the most advanced. It requires face-to-face identification of the signatory by an approved authority, which must issue a nominative qualified electronic signature certificate of QCP QSCD in person. The signatory must then use a specific system to affix this certificate. This allows the signature to have a presumption of reliability, and if the signatory denies the signature, they are the one who has to prove it.
The trusted third party: DOCAPOSTE
The eIDAS Regulation defines several regulated trust services:
- Timestamping: to guarantee the date and time
- Electronic registered: to guarantee the sending and delivery of a message
- Certificates:
- E-seal: to guarantee origin and integrity on behalf of a legal entity
- E-signature: to guarantee consent, origin, and integrity on behalf of a natural person
- of websites
- Preservation of e-signatures and qualified stamps (this is not legal archiving, which is not covered by the eIDAS)
In each category of eIDAS trusted services, providers can be "qualified" for the entire EU by a supervisory body appointed by any EU member state.
In France: the company LSTI is accredited by ANSSI to grant the status of "qualified" eIDAS provider.
Document signed in PDF format
Once these technical operations have been completed by the trusted third party, the signed document becomes a PDF, and contains e-signatures with their associated certificate.
It is mandatory to provide a copy of the digital original signed and sealed document to all signers as soon as it is available.
Initials and electronic signature
Is it necessary to initial the pages of electronically signed documents? The answer is no, because sealing is achieved by securing and locking in all the content of the document- every page, every character and every punctuation mark.
Handwritten entries and electronic signature
With rare exceptions, which are explicitly mentioned in the legislation, handwritten references are not necessary. When they are required, it is usually possible to replace them with a typed statement, provided that the e-signature process leads the signers to add it to the document themselves.
What about legal archiving?
The loss or alteration of electronic originals (the signed PDF document once it has been sealed by the trusted third party) is fatal, since it is no longer possible to prove their legal validity. This is why electronic signatures are frequently associated with legal archiving for signed contracts, certified evidence files, and possibly appendices. The trusted third party must archive the proof files and certificates.
If the legal archiving of contracts itself is not a legal obligation, it guarantees proper preservation of the electronic original, the certificates it contains and the evidence files, according to the NF Z42013 standard. However, if you have other means of preserving electronic originals in good condition, you can do without a third party archiver.
Guaranteed electronic signature
Although complex, the legal framework for electronic signatures today is stable, mature, and standardised. It is therefore possible to implement the appropriate solution to sign and have signed any type of document digitally in complete security.
To secure your transactions, there are two methods depending on the size and means of your organization:
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- A legal study specific to your business context. However, this can be long and costly without being sure the study will bring out concrete decisive elements in the end.
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- A guarantee of electronic signatures’ reliability. Indeed, the risk has been measured, and insurance companies are now able to protect you against the legal risk of someone challenging the validity of your contracts’ electronic signatures. In fact, at SELL&SIGN we include a guaranteed legal protection insurance from GENERALI in all our offers with no extra charge.