The increasing importance of the electronic signature

Introduction
All over the world governments have implemented strict measures to fight the COVID-19 virus. As a consequence, many people are forced to work from “Home Office”. Working from home brings new challenges, one of these challenges is the difficulty to print and sign documents with actual ink on paper. A welcome alternative for this handwritten signature is the electronic signature. However, it is important to carefully consider before using electronic signatures; not all electronic signatures have the same legal effects as a handwritten signature, which will cause problems when e.g. enforcing a document before a court. Below we will explain the types of electronic signatures and their legal effects.

Legal framework
The different types of electronic signatures and their legal effects are described in European and national legislation. At an EU level, the rules regarding electronic signatures are laid down in Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS-Regulation). The relevant article in Dutch law is Section 3:15a Dutch Civil Code (DCC).

Types of electronic signatures
The eIDAS-Regulation distinguishes three types of electronic signatures:
(i)    the common electronic signature, such as the automatic signature under an email or a scan of a handwritten signature accompanying a PDF;
(ii)    the advanced electronic signature, such as the token used when signing a bank transaction; and  
(iii)    the qualified electronic signature, this signature is backed by a qualified certificate issued by a trust service provider that verifies the identity of the signer and the authenticity of the signature.

The above shows that to qualify as a certain type of signature, a gradual scale of requirements must be met. The common electronic signature has the least requirements and the qualified electronic signature the most. In other words, the qualified electronic signature provides an enhanced security with respect to the identification of the signatory and the content of the document.

Legal effects of the electronic signature
Important for the use of electronic signatures is Article 25 paragraph 2 and 3 of the eIDAS-Regulation. This article stipulates that if a signature qualifies as a qualified electronic signature (and thus meets all the requirements in the eIDAS-Regulation), the signature will have the same legal effects as a handwritten signature and must be recognized as such in all Member States. Unfortunately, the eIDAS-Regulation does not determine the exact legal effects of the other types of signatures. and the Member States themselves had to determine the legal consequences of the ordinary and advanced electronic signature. As a result, legislation varies across Member States.

Under Dutch law, the legal effects of the ordinary and advanced electronic signature are regulated under Section 3:15a DCC. In short, this article determines that ordinary and advanced electronic signatures can have the same legal effects as handwritten signatures, if these signatures are sufficiently reliable (voldoende betrouwbaar) assessed in the light of all specific circumstances of the case. The requirement of ‘sufficiently reliable’ is an open standard which makes it difficult to assess in general when this requirement is met. It is assumed that a simple electronic signature usually will suffice for a simple transaction such as the sale of a book or cd. On the other hand, a more complex transaction that requires more reliability and security, such as legal or medical advice, will often need a more advanced electronic signature. The economic value and nature of the transaction will thus be important in the assessment. The above means that if court judges that the ordinary or advanced electronic signature is sufficiently reliable, it has the same legal effects as a handwritten signature.  If the court judges that it is insufficiently reliable, the electronically signed document has only free evidential value (vrije bewijskracht). The electronic signature is not invalid, but additional evidence may be required to demonstrate the authenticity of the electronic signature.

Conclusion
Because the qualified electronic signature has the same legal effects as the handwritten signature, it is a recommendable way to sign documents. However not all people will have these qualified electronic signatures available. If an ordinary or advanced signature is used, it is important to make it sufficiently reliable. Otherwise the electronic signature might be valid but not enforceable before a court without admitting further evidence about the identity of the signatory and the authenticity of the signature.