Many companies in many procedures already use the electronic signature, but many people are still not confident about the validity of a digitally signed contract. This post tells you how to prove its legal validity.
What is the legal basis for the validity of the electronic signature?
To be clear about the validity of the electronic signature, we must set several regulations:
– Article 1261 of the Spanish Civil Code establishes that the three essential elements for the validity of a contract are consent, the object and the cause.
– Regarding consent, the one we are into is defined by article 1262: -“The consent is manifested by the contest of the offer and the acceptance of the thing and the cause that must constitute the contract.”
On the other hand, article 1258 establishes that: “Contracts are concluded by mere consent, and since then they oblige, not only compliance with what is expressly agreed but also all the consequences that, according to their nature, are in under good faith, use and the law.”
– Finally, article 25 of the eIDAS Regulation establishes in section 1 that: “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”.
As a result of the foregoing, the electronic signature has legal validity since it clearly expresses the parties consent.
How to prove the validity of the electronic signature?
Imagine that you have signed a contract digitally, and you have to prove its validity in a trial. It is necessary to bear the following in mind:
– Type of signature used. The eIDAS Regulation defines three types of electronic signatures: simple, advanced and qualified. The distinction derives from the level of security offered by each one, so the use of one or the other depends on the type of document you are going to sign; that is, it is not the same to sign an information letter or a work contract, for example
– Reliable identification of the signatories. The electronic signature you choose must allow the signatories to be unequivocally identified.
– Timestamping. The timestamp provided by the electronic signature allows to prove that the document that has been signed has not been tampered during the signature process; therefore, it guarantees its integrity. The stamping is carried out by a Certification Authority thus, including anti-tampering features. Article 41 of the eIDAS regulation establishes that.
- 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.
- The stamping is carried out by a Certification Authority and, therefore, the content of the document is protected from falsifications and manipulations.
- A qualified electronic time stamp issued in one Member State shall be recognised as a qualified electronic time stamp in all Member States.
Electronic documentary evidence. The documentary evidence is a PDF document that can be used as evidence to prove the validity of the electronic signature. The documentary evidence provides the following information:
Data of the registered emails or registered SMS sent and received: content, email addresses, mobile phone number, IPs of the process, dates and times of each communication.
o Technical annexes.
o OTP, Click-to-Sign or biometric signature.
The documentary evidence can be downloaded so that you can save it or refer to it when needed.
– Documentary custody. The documents uploaded to the cloud during the signature process (payroll, IDs, passports, receipts, etc.) will be stored for five years.
– Trust service provider. Trusted service providers such as Click & Sign are controlled by a supervisory body and audited every 24 months by a conformity assessment body. The purpose of the audit is to confirm that both the service provider and the services provided comply with the Regulation.
As a result, if you have to prove in a judicial procedure the validity of the electronic signature of a document, you will have several tools attesting who signed the document, when and the content of the document