Three levels of electronic signature

Three levels of electronic signature

The eIDAS Regulation defines three types of electronic signatures: (Basic) Electronic Signature, Advanced Electronic Signature and Qualified Electronic Signature.

According to eIDAS, “electronic signature” is defined as “data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”.

Basic Electronic Signature

In practice, a basic electronic signature can be any kind of signature made in an electronic environment where the signatory has manifested their intent (e.g., by clicking a button or checking a box) to become bound by the contents of the document thus signed.

Advanced Electronic Signature

According to eIDAS, “An advanced electronic signature shall meet the following requirements:

• it is uniquely linked to the signatory;
• it is capable of identifying the signatory;
• 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”.

In practice, these elements of unique identity, sole control and integrity of the signed document can be achieved through different means regardless of what technology is used. It should be noted that identification for signing purposes may or may not be “electronic” to reach the advanced electronic signature level. A recognized eID assures secure authentication of the signatory’s identity in the online environment. In practice, the use of Qualified Electronic Signatures invokes an extra layer of assurance (or trust) that results in a special legal effect that shall be recognized by the courts in the EU.

Qualified Electronic Signature

According to eIDAS, “‘qualified electronic signature’ means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures”.

 

A legal framework for electronic signatures

The basic legal principles that support the use of electronic signatures are not defined by eIDAS. Rather, they are found in contract law, where an offer to enter into an agreement followed by the acceptance thereof constitutes a binding agreement. Thus, in the absence of legal requirements specifying the form of a contract, level of signature or method of authentication, a contract can be entered into by any means, including on paper, orally, or with a basic electronic signature.

The eIDAS regulation is a legal framework governing the use of electronic signatures, but it doesn’t mandate their use per se, nor does it have any impact on contract law. The regulation states:

This Regulation does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to form.

In fact, a basic electronic signature is sufficient and indeed legally valid for the vast majority of private transactions, B2B, B2C, and between private persons. To dispel any doubts in this respect, eIDAS explicitly states this fundamental principle:

“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 form or that it does not meet the requirements for qualified electronic signatures.”

Note that in some cases, national laws may require more than a basic electronic signature, e.g., when specific KYC (know your customer) requirements apply. Or, although it is not a legal requirement for a valid signature, a party might want to authenticate the counterpart with a certain level of security when the transaction entails a high business risk.