The COVID-19 pandemic has made us rethink the way we work Almost overnight, tasks had to be digitized so that companies could continue their activity and one of the first things that was digitized was the signature. However, you may not be sure about the difference between a simple, advanced, and qualified electronic signature. This post points out where the different types of electronic signature are regulated, how they differ and their validity in the event of a judicial procedure.
The pandemic has shown us that pen and paper signature is out of date involving significant time- consuming actions such as printing scanning, signing, etc., and it has been replaced by electronic signature, so that a document can be signed anytime, anywhere.
Regulation of electronic signatures
The electronic signature is regulated at European level by Regulation 910/2014 of July 23, 2014 regarding electronic identification and trust services for electronic transactions in the internal market the regulation is known as eIDAS.
The difference between eIDAS regulation and the former regulation is that eIDAS is directly applicable to the European Union Member States without implementing a transposition regulation , thus avoiding each Member estate from making a different interpretation of the regulation.
What is a simple, advanced, and qualified electronic signature?
To understand the difference between a simple, advanced, and qualified electronic signature, it is necessary to resort to the definition given by eIDAS, which establishes the following in its article 3
- An electronic signature, refers to data in electronic form, which is logically associated with other data and which is used by the signatory to sign
- Advanced electronic signature must meet the specific requirements of article 26 of the Regulation:
- It is uniquely linked to the signer.
- It is capable of identifying the signer.
- It is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and
- It is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.
- Qualified electronic signature is an advanced electronic signature that is created by a qualified signature creation device and which is based on a qualified certificate for electronic signatures.
Difference between simple, advanced, and qualified electronic signature
As outlined above, the difference between simple and advanced electronic signature is due to:
- The simple electronic signature is usually used in documents with no great legal risk, for example, when receiving a parcel and you sign upon delivery.
- The advanced electronic signature offers greater security, generates more confidence and is a more solid evidence should it be use in a judicial procedure. The advanced electronic signature is usually used for contracting utilities, Internet, fast loans, insurances, extension of insurance policies etc .
- The use of the advanced electronic signature is more complex since it requires a qualified electronic signature certificate (electronic ID) and a device to create the signature that will also have to meet the requirements established in the eIDAS regulation.
How valid is the electronic signature?
Regarding the validity of the different types of electronic signature, we must refer to article 25 of the eIDAS regulation, which states:
- An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic signature or that it does not meet the requirements for qualified electronic signatures.
- A qualified electronic signature will have a legal effect equivalent to that of a handwritten signature.
In general, the signature on a paper document implies acceptance by the signatory of the content of that document. However, the signature can be challenged in a trial so that additional evidence will have to be performed to prove its validity, for example, a calligraphic expert or if necessary, the declaration of the signatory as a witness recognizing his own signature or not.
With the qualified electronic signature, the identification of signatory is unequivocal, so no additional proof is necessary. Besides, we remind that the advanced electronic signature, in having to comply with the requirements of article 26 of the eIDAS regulation, offers greater security as evidence in trial.
As a result of the foregoing, not all types of electronic signatures are used for any procedure, but it is necessary to carry out a prior analysis of the company that is going to use the electronic signature to identify which one is needed, for which department and for what purpose.