The legal validity of an electronic signature

What is an electronic signature?

An electronic signature is legally defined as “data in electronic form that is attached to or logically associated with other data in electronic form and that is used by the signer to sign.”

In other words, it is digital data that a person uses to sign a document or agreement. An electronic signature serves to confirm the signer’s identity and to demonstrate that they agree to the document’s content.

However, not every electronic signature offers the same guarantees. We distinguish between three types of electronic signatures, each with its own characteristics and legal validity.

What are the three types of electronic signatures?

1. The standard electronic signature

The standard electronic signature is the simplest form of electronic signing.

Some examples include:

• A scanned handwritten signature that you add to a digital document.

• Entering a PIN.

• Clicking a button that says “I agree.”

The disadvantage of this method is that it offers no guarantee regarding the authenticity of the signature (the signer’s identity) or the integrity of the signed document (has it been altered or not?).

From a legal standpoint, a standard electronic signature does not automatically have the same legal weight as a handwritten signature.

However, that does not mean it is invalid. A judge may not reject a signature solely because it is electronic. It may, however, be more difficult to prove that the signature was actually placed by the person in question.

2. The advanced electronic signature

An advanced electronic signature offers greater security than a standard electronic signature. This is because it must meet four conditions. An advanced electronic signature is a signature that:

• is uniquely linked to the signatory (e.g., by assigning a unique private key to the signatory);

• enables the signer to be identified;

• is created using data that the signatory can use under his or her exclusive control and with a high level of confidence (e.g. , by making access to the private key dependent on a PIN);

• makes subsequent changes traceable (via audit trails).

Examples of this include a signature function within an information system with authentication (logging in with a username and password) or a token generated by a bank card reader.

This signature is therefore accompanied by a number of technical controls. These controls demonstrate the authenticity of the signature as well as the integrity of the signed document.

However, even an advanced electronic signature is not automatically considered legally equivalent to a handwritten signature. As with the standard electronic signature, however, a judge may not reject it solely because it is electronic.

3. The qualified electronic signature

The qualified electronic signature offers the highest level of legal certainty among the three types.

It is:

• an advanced electronic signature;

• created using a qualified means for creating an electronic signature (e.g., specific software); and

• based on a qualified certificate issued by a qualified trust service provider (a quality label).

Examples include signing via eID or the Itsme app.

This type offers the highest level of assurance regarding the authenticity of the signature and the integrity of the signed document.

Unlike the standard and advanced electronic signatures, a qualified electronic signature is legally equivalent to a handwritten signature. It therefore has the same legal consequences. Furthermore, a qualified electronic signature is recognized in all EU member states if it is based on a qualified certificate issued in an EU member state.

Do you always have to use a qualified electronic signature?

No, a qualified electronic signature is not always necessary.

Which type of electronic signature is best depends on various factors: the type of document or legal act, the importance of the document, the cost of the signature, etc.

In certain situations, however, a qualified electronic signature may be required. This is the case, for example, with some transactions involving government agencies.

Conclusion

Due to the increasing digitization of the business world, electronic signatures are being used more and more frequently. This offers several advantages:

• simple and efficient signing, even remotely;

• no paper consumption;

• increased security and traceability of the signing process.

All three types of electronic signatures can be legally valid, but they do not offer the same guarantees. Only the qualified electronic signature is automatically considered equivalent to a handwritten signature. As a result, the burden of proof may be greater for a standard or advanced electronic signature.