An electronic signature is a great simplification when managing a business, but sometimes it raises concerns about its legal power. However, a document signed with an electronic signature, in the light of Polish law and EU regulations, may constitute a piece of evidence in court proceedings. See when the electronic signature and the document itself are valid under the law.
What do the regulations on electronic signature state?
The most important provisions on electronic signature are the Act of September 2016 and the European eIDAS Regulation of July 2014. The eIDAS Regulation on electronic identification and trust services for electronic transactions in the internal market has been in force since 2016 in all European Union countries. The provisions on electronic signature contained in the Polish act on trust services and electronic identification and appropriate changes to the Civil Code ensure compliance of the national law with the European law.
In accordance with article 25(1) of eIDAS, an electronic signature may not be denied legal effect or admissibility as evidence in court proceedings solely because the signature is in electronic form or does not meet the requirements for qualified electronic signatures. Therefore, an ordinary electronic signature is also a form of confirmation of a contract recognized by law, and the Civil Code in Article 60 allows for expressing will in electronic form by the person performing the legal transaction. It is also fully secure, as long as you are dealing with a certified signature.
In line with the law trust service providers such as Autenti serve the parties to the contract as intermediaries, whose role is to ensure the security of signing documents in electronic form - among others thanks to the application of appropriate certificates. In other words, they are a trusted third party that guarantees electronic signature security and verification of signers and also certifies that the integrity of signed data has not been breached and further secures the document so that it can be used as proof of concluding the contract. It is important to note not only the validity of the electronic signature itself, but also the signed document.
Type of electronic signature and form of the contract
Until 2016, the use of electronic signatures was not that easy. In order for most of the signed documents to be legal, it was necessary to use the so-called qualified electronic signature.
Currently it is a form of advanced electronic signature, i.e. one that:
- is uniquely assigned to the signatory;
- makes it possible to establish their identity;
- is made using data that only that person can use with a high degree of certainty;
- is associated with the signed content in a way that any subsequent change is recognizable.
Additionally, it has to be made by a qualified device and be based on a qualified certificate of the electronic signature. Obtaining such a certificate, however, is only possible in selected institutions and it is associated with the cost of several hundred zlotys a year. It is also based on detailed verification of the identity of the person applying for it. Keep in mind that an electronic signature has legal effect if the certificate on which it is based is valid at the time of signature.
According to the eIDAS regulation a qualified electronic signature is equivalent to a handwritten signature and a certificate issued in one of the EU countries is valid in all other member states. Currently, however, it is only required for those documents that still require a written form, otherwise being illegal (e.g. an employment contract, a contract for a specific task with the transfer of proprietary copyrights, a general power of attorney, a lease contract or a contract for managing a bank account).
Since September 2016, changes to the Civil Code have been in force, due to which a qualified electronic signature is not needed to sign the overwhelming majority of documents and contracts that are present in trade. They no longer need to be placed in writing, but the so-called document form will be sufficient. This usually involves an electronic document bearing a simple electronic signature that is not based on a qualified certificate.
The identity of the signing person in this case, is verified each time by the trust service provider - i.e. the electronic signature creation platform - based on a method chosen by the party that sends the document for signature. For this purpose, you can use a link sent to the e-mail address of the signing person or a one-time text message code sent to their phone number, in combination with the name and surname of that person and the IP address of the device used to place the signature. Other methods include automated video verification of the signing person, a verification bank transfer or logging in to online banking.
However, the content of the document may not include any written provisions, for example: "The contract has been concluded in writing otherwise being invalid". This form requires a qualified electronic signature. So if an ordinary electronic signature is used, the content of the contract may only include the provision of "document form".
Security of a document signed with a certified electronic signature
Even when the electronic signature itself is valid, a document can be challenged if there is no guarantee that it has been secured in a way that prevents changes after its signing. In order to avoid the above, trust service providers use technical security measures guaranteeing the authenticity and integrity of documents.
Once signed, they are stamped with an electronic seal - a type of "signature" of a legal person. It confirms that the document was sent using a trusted platform and signed by both parties in the same, unchanged form. The electronic seal makes it possible to prove how the signing process was carried out and makes it possible to become evidence in legal proceedings, if necessary.
Autenti uses an electronic seal based on a qualified certificate which is the safest form of this type of guarantee. It can also be used to secure documents signed with ordinary electronic signature and qualified electronic signature.
Furthermore, Autenti provides secure storage of documents and their availability for each of the stakeholders. Due to the above, documents signed on the platform are a durable medium that provides access to unchanged information in the future, as required by the electronic signature regulations.
