by Dr Edric Micallef Figallo – Associate
Our law regulates electronic signatures mainly through Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (hereinafter “Regulation”). For a proper understanding of the legal situation, reference should also be made to the the Electronic Commerce Act (Chapter 426 of the Laws of Malta, hereinafter “Act”), which in relation to electronic signatures is basically silent, as electronic signatures are regulated directly by the Regulation. The Act is primary important to determine whether electronic signatures can be made use for a particularly activity in the first place, and if this results in the positive then the Regulation determines what is required for there to be a valid and legally effective electronic signature.
It is apt to quote the pertinent definitions in order to better understand what is meant in the Regulation by “electronic signature”. Article 3 of the Regulation inter alia provides that “‘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;” while “‘signatory’ means a natural person who creates an electronic signature;”.
In Malta we are used to documents having original signatures and often that to us means that these are handwritten (or certified true copies thereof). Many times we are we are also obliged to have handwritten signature so as to ensure legal validity or we are advised to have them to ensure that the document has the relevant probatory weight in case of any issue in relation to an agreement. This is important, and the Regulation has thought of allowing for electronic signatures to have the same legal effect of handwritten signatures. In most cases, this could mean that they would have the same effect in most deals and agreements to be executed and, or enforced within Malta’s jurisdiction. However, the Regulation also provides a strict regime to allow for such electronic signatures.
Basically, the Regulation provides in Article 25(2) that “2. A qualified electronic signature shall have the equivalent legal effect of a handwritten signature.” A qualified electronic signature is defined as an “advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures;” by the Regulation. Thus, the Regulation provides a number of requirements to arrive to a valid qualified electronic signature.
A qualified electronic signature must satisfy the requirements for being an advanced electronic signature, which is more than a basic electronic signature. In this regard it has to comply with Article 26 of the Regulation. This provides that:
“An advanced electronic signature shall meet the following requirements:
(a) it is uniquely linked to the signatory;
(b) it is capable of identifying the signatory;
(c) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
(d) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.”
The advanced electronic signature must be created by a qualified electronic signature creation device which is an electronic signature creation device satisfying the requirements of Annex II of the Regulation. Device conformity therewith has to be certified by appropriate public or private bodies designated by Member States as per Article 30 of the Regulation, notified to the European Commission by the Member States and published by the European Commission.
Indeed, the Regulation, colloquially referred to as the eiDAS Regulation, provides the legal means to ensure the authenticity, validity and legal effect of electronic signatures, besides the fact that the Act itself provides for sanctions for any abuse, without prejudice to other possible sanctions related to pertinent criminal offences and the resultant civil claims.
Before determined that you may use an electronic signature to conclude any agreement, or to bind yourself or others through what you may deem as electronic signatures, kindly ensure you get proper professional advice relating to your needs and interests.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on firstname.lastname@example.org.