Written form and signature in the digital age

24. 5. 2023
Written form and signature in the digital age

Unlike many other law codes, the Czech Civil Code does not contain a definition of a handwritten signature. The absence of a definition brings many complications in practical life, as persons are often unsure how exactly to proceed in electronic legal transactions. What regulation of form and signature does the Civil Code contain?

In general, legal acts may take any form unless otherwise specified. The signature can then, if customary, be replaced by mechanical means (e.g., a signature stamp). According to the courts, the signature must be placed after the text it confirms or it must be clear that it also confirms the content of the text following the signature.

In the case of an electronic legal act, an act is considered to have been made in writing if it allows the content of the act to be recorded, the person acting to be identified and contains the electronic signature of that person. Based on some opinions, communication by e-mail is an example of an electronic legal act, provided that the parties agree to the use of specific e-mail addresses in order to easily identify the persons acting. In the case of sending a document by fax, the document must be signed which again allows the identification of the person acting.

For legal transactions carried out by electronic means, the Civil Code refers to other legal provisions, namely, the EU eIDAS Regulation and its Czech corollary, the Trust Services Act. These distinguish (in order of trustworthiness of the signature from least to most trustworthy) (a) electronic signature (so-called "simple"); (b) guaranteed electronic signature; (c) guaranteed electronic signature based on a qualified certificate for electronic signature; and (d) qualified electronic signature. Only a qualified electronic signature has the same effect as a handwritten signature.

When an entity is acting vis-à-vis a public authority, it must use either a guaranteed electronic signature based on a qualified certificate or a qualified electronic signature. If the legal act is performed by public authorities, they must always use a qualified electronic signature. When neither of the above legal acts are involved, any type of electronic signature may be used.

The mere inclusion of a name in the text of an electronic document also satisfies the definition of a "simple" electronic signature. Its statutory regulation could therefore give the impression that if someone were to produce a document with someone's name at the end of the document, the document would be deemed to have been signed by them. However, this is not the case. The aforementioned provision of the Civil Code, which states that the person acting must be identified, applies. The electronic signature must therefore identify the person and enable his or her identity to be verified. Scans of handwritten signatures attached to the data message, the use of an agreed password or a method otherwise agreed between the parties are thus all valid forms of identification.

A specific situation is the use of data boxes; if you act through them, the act is considered signed by your handwritten signature, even when there is no signature at all.

In conclusion, in view of the case law, which is sometimes complicated or even slightly contradictory in the case of electronic signatures of a lower level of trustworthiness, it can only be recommended to use electronic signatures of the highest possible level of trustworthiness or to act via a data box if you want to ensure that your electronic legal transaction is valid. However, this does not mean that using less trustworthy electronic acts will not be valid, but the circumstances of the case will always need to be properly assessed, which, in the event of a dispute, can only be done by a court.

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