Deutsch
English
Is a digital signature legally valid? An overview
Quick overview:
- Save time and money for your company with eSignatures
- Optimise your customer experience with legally valid signatures
- Compliant with all global standards, such as eIDAS (EU), ZertES (CH), UETA, ESIGN, etc.
Certifaction, your partner for legally valid eSignatures
eIDAS-compliant
ZertES-compliant
UETA & ESIGN compliant
Background
How is the legal validity of digital signatures regulated?
Compared to handwritten signatures, eSignatures are the better choice for any company that wants to save time and money and optimise its customer experience. Of course, this requires that an electronic signature is accepted as legally valid by the legislator.
This is regulated differently in each country or economic area and often also depends on the use case. In some cases, special requirements are also placed on an electronic signature in order for it to be legally valid.
Fortunately, new regulations have been issued worldwide in recent years that clearly regulate precisely this, so that digital signatures are now accepted as fully legally valid in most countries.
Examples of these framework regulations are eIDAS in the EU, ZertES in Switzerland and the ESIGN and UETA regulations in the USA.
Simple, advanced or qualified?
In reality, terms such as “electronic signature”, “digital signature” or “eSignature” are only generic terms for various signature standards with sometimes very different technical requirements.
The so-called qualified electronic signature (QES) deserves special attention. Here, the identity of all signatories is securely verified by a separate identification procedure, for example by video identification services. The legislator can prescribe a QES in applications where there is a formal requirement for its legal validity.
The advanced electronic signature (AES) lies between the simple electronic signature (SES) and the qualified electronic signature (QES). The AES must be clearly linked to the signatory, be able to identify him and be created with electronic signature creation data that the signatory can use under his sole control. It offers a higher level of security than an SES and is also more user-friendly than a QES, making it particularly suitable for use cases that require a higher level of trust but do not need to fulfil the strict requirements of a QES.
This is in contrast to the simple electronic signature (SES). In this case, identification is based only on the e-mail address, which is used as a secure alternative in certain areas such as B2B business. If no formal requirement is prescribed by law, an EES is generally accepted as a legally valid alternative to a handwritten signature, provided that a framework regulation such as eIDAS or ZertES recognises electronic signatures in principle.
Global overview
As described, use cases are regulated differently in different countries.
In the following, we would like to explain the general situation regarding eSignatures in some important countries and economic areas:
The legal validity of digital signatures in Switzerland
Overview
In Switzerland, digital signatures are legally valid and are generally equated with handwritten signatures (freedom of form). eSignatures have been legally recognised in Switzerland since 2003 and their use is regulated in the Federal Act on Electronic Signatures (ZertES) and the Swiss Code of Obligations (OR). Under Swiss law, contracts are generally form-free, i.e. contracts are valid if the parties with legal capacity enter into an agreement – verbally, in writing or by other means (Art. 11 para. 1 CO).
Applicable laws
Switzerland has a tiered eSignature Act, which generally differentiates the strength of the signature in terms of the authenticity of the signature and the integrity of the document: Federal Act on Electronic Signatures (ZertES) Further guidance on the general legal validity of eSignatures in Switzerland can be found in the Swiss Code of Obligations: Code of Obligations (OR)
Precedent law
Swiss courts have already dealt with the topic of electronic signatures on several occasions. Below is an example of a decision by the Swiss Federal Supreme Court: Swiss Federal Supreme Court, 5A_503/2019, Section 3.3
Main legal conclusions
The laws governing electronic signatures in Switzerland generally provide for the same standards for electronic signatures as for handwritten signatures – provided there are no formal requirements (freedom of form). And if there are formal requirements, then a Qualified eSignature (QES) is prescribed. Good to know: The vast majority of contracts can be concluded under Swiss law without formal requirements – and therefore without a QES
The legal validity of digital signatures in the European Union
Overview
In the European Union, digital signatures are generally legally valid and cannot be rejected in court solely on the grounds that they are not handwritten. Electronic signatures in the European Union are governed by the Regulation on electronic identification, authentication and trust services (eIDAS) adopted in 2016. It was introduced with EU Regulation 910/2014 of 23 July 2014 on electronic identification and repeals Regulation 1999/93/EC of 13 December 1999. With eIDAS, a standardised framework for legally valid eSignatures was created in all EU member states. This Regulation regulates the use of eSignatures throughout the European Union in its Chapter 3 “Trust Services” and in Section 4 “Electronic Signatures”.
Applicable law
The European Union has a tiered eSignature Regulation that generally provides for a differentiation of signature strengths in terms of the authenticity of the signature and the integrity of the documents
Main legal conclusions
As regulated in the eIDAS, digital signatures are generally legally valid and legally enforceable in all member states of the European Union. Furthermore, a QES is legally recognised as equivalent to a handwritten signature. However, the regulations also state that eSignatures cannot be considered inadmissible in court simply because they do not meet the standards of a QES. Good to know: The vast majority of contracts can be concluded under European eSignature law without formal requirements (which would require a QES).
The legal validity of digital signatures in the United Kingdom
Overview
In the UK, electronic signatures are generally legally valid and cannot be rejected in court solely on the grounds that they are not handwritten. eSignatures in the UK are largely governed by the Electronic Identification and Trust Services for Electronic Transactions Regulations (UK eIDAS) of 2016 and the amendment following the UK’s withdrawal from the EU in 2019. In addition, the Electronic Communications Act 2000 (ECA 2000) and the Electronic Signature Regulations (ESR 2002) have created a legal and technical framework for the permissibility of electronic signatures in the UK.Applicable laws
The UK has a tiered eSignature Regulation, which generally provides for a differentiation of signature strengths in relation to the authenticity of the signature and the integrity of the document- The Electronic Identification and Trust Services for Electronic Transactions Regulation 2016 (2016 No.696)
- The Electronic Identification and Trust Services for Electronic Transactions (Amendment etc.) (EU Exit) Regulations 2019)
- Electronic Signatures Regulations 2002
- Electronic Communications Act 2000
Main legal conclusions
As regulated in the UK eIDAS, digital signatures are generally legally valid and legally binding. The vast majority of contracts can be concluded under UK eIDAS law without formal requirements (which would require a QES). Good to know: Although the UK eIDAS Supervisory Authority has no EU eIDAS regulatory obligations, it continues to work closely with other EU supervisory authorities.The legal validity of digital signatures in the United States
Overview
In the United States, eSignatures are generally legally valid and no contract, signature or record can be legally invalid simply because it is in electronic form. eSignatures are legally recognised and provided for in the United States with the Electronic Signatures in Global and National Commerce Act (ESIGN) signed into law in 2000 and the state and territorial versions of the Uniform Electronic Transactions Act (UETA) of 1999. This act explicitly recognised the legitimacy of electronic signatures (provided the parties to the contract agree to the use of electronic documents and electronic signatures) and established that electronic signatures carry the same legal weight as traditional handwritten (wet) signatures.Applicable laws
In the United States, there are minimalist eSignature laws that are technology neutral and where an eSignature (regardless of the strength of the underlying signature) generally carries the same legal weight as a handwritten signature.- Electronic Signatures in Global and National Commerce Act (ESIGN Act)
- The Uniform Electronic Transactions Act (UETA)
Main legal conclusions
Under both the ESIGN Act and the UETA, eSignatures have the same probative value as handwritten signatures. No contract, signature or record can be denied legal effect simply because it is in electronic form.The legal validity of digital signatures in China
Overview
In the People’s Republic of China (“PRC”), digital signatures have been legal since 2004 with the adoption of the Electronic Signature Law (ESL). The ESL was then significantly revised in both 2015 and 2019. The General Rules of Civil Law of the PRC stipulate that a civil act may be performed in written, oral or other form (freedom of form) – unless otherwise specified. Such formal requirements do not generally exist in private business life, but only in dealings with the PRC state authorities, in personal relationships and for public utility services. And according to the Contract Law of the PRC, “in writing” refers to any form that can visibly represent the described content, including electronic data. eSignatures are generally legally equivalent to handwritten signatures if they can be categorised as “reliable”. To this end, the eSignature must be linked to and under the control of the signatory, it must not be subsequently altered and all changes must be verifiable.
Applicable laws
The PCR defines an eSignature as electronic data contained in an electronically signed document in such a way that it shows that the signatory recognises what is stated in the document.
Main legal conclusions
In China, electronic signatures are legally recognised and the law states that an eSignature cannot be considered invalid just because it is not handwritten (freedom of form). eSignatures are generally valid for all civil acts and commercial contracts, with the notable exceptions of dealings with PRC state authorities, personal relationships (such as marriage, adoption, inheritance) and public utilities (such as termination of water, heat and gas supply).