The electronic signature is already more than 10 years old. It’s a lot … and little at the same time, especially with regard to several hundred years of handwritten signature! Thus, today it remains relatively unknown not only to the general public but also professionals. In particular, we are often asked this question: what is the legal value of an electronic signature? Depending on the case, the response may differ. We believe it is essential to recall the French and Community legislative framework for the electronic signature.
At the European level
It should be noted that the founding text defining a Community framework for electronic signatures in Europe is the European Directive of 13 December 1999. It distinguishes two types of electronic signature with two different levels of legal validity :
The electronic signature (Article 2) : “data in electronic form, which is attached or logically linked to other electronic data and serves as a method of authentication”. At this level, an electronic signature can not be refused as evidence in court but can not claim a level of recognition equivalent to that of the handwritten signature.
The Advanced Electronic Signature (Article 5.1) states: “member states shall ensure that advanced electronic signatures based on a qualified certificate and created by a secure signing device meet the legal requirements of a signature in respect of data Electronic means in the same manner as a handwritten signature meets these requirements in respect of data handwritten or printed on paper and is admissible as evidence in court “.
In this second case, the equivalence of the electronic signature with the handwritten signature is acquired when three conditions are met :
1. Implementation of an advanced electronic signature;
2. Use of a secure electronic signature creation device;
3. Use of a qualified certificate.
We will detail these conditions later, in particular by examining the transposition of this European text into French law.
At national level
The electronic signature (Article 4 of Law 2000-230 of 13 March 2000): “When the signature is electronic, it consists of the use of a reliable identification process guaranteeing its connection with the act to which it attaches “. At this level, the so-called “simple” electronic signature process is not presumed to be reliable, but the written document thus signed in electronic form can not be refused in court as evidence when the process makes it possible to identify the signatory and to guarantee the link with the signed act. In case of dispute, it is necessary to prove the reliability of the electronic signature process used.
The “presumed reliable” electronic signature: Article 4 of Law 2000-230 of 13 March 2000 also stipulates that the burden of proof may be reversed, in the event of dispute, under certain conditions defined by Decree 2001- 272 of March 30, 2001. “The reliability of an electronic signature process is assumed until evidence to the contrary when this process implements a secure electronic signature, established by means of a secure device for creating electronic signature, and the verification of this signature is based on the use of a qualified electronic certificate “.
In order to benefit from the presumption of reliability, the signatory must therefore implement a signature meeting three conditions :
1. The electronic signature is secured. In other words, it is an electronic signature that meets the following requirements : be specific to the signatory; be created by means which the signatory may retain under its exclusive control; Guarantee, with the act to which it relates, a link such that any subsequent modification of the act is detectable (document integrity).
2. It is created by a secure signature creation device (SSCD), that is to say, by a device certified according to a certain number of requirements. The list of certified devices can be found by clicking here.
3. The verification of this signature is based on the use of a qualified electronic certificate. Certificates issued by qualified electronic certification service providers are presumed qualified. The decree of 26 July 2004 regulates and defines the recognition of the qualification of providers of electronic certification services.
If all these conditions are met, the electronic signature is presumed to be reliable and will be entitled to a level of recognition equivalent to that of the handwritten signature : in case of dispute, it will be up to the person who questions the reliability of the signature to prove it.