Nowadays, both private and professional parties increasingly enter a digital contract or settle for a scanned signature. The intention is of course no different than with a normal handwritten signature, namely, to bind the parties to certain obligations because they have indicated that they know the content of the contract and agree to it. But can the digital signature be assigned the same value as the handwritten signature?
Dutch Electronic Signatures Act
With the advent of the Dutch Electronic Signatures Act, article 3:15a has been added to the Civil Code with the following content: ‘an electronic signature has the same legal consequences as a handwritten (wet) signature’. This is subject to the condition that the method used for its authentication is sufficiently reliable. If not, the digital signature can be declared invalid by the judge. The degree of reliability also depends on the purpose or importance of the contract. The greater the importance, the more reliability is required. Electronic signature can take three different forms:
- The ordinary digital signature. This form also includes the scanned signature. While this form of signature is easy to forge, it can in certain circumstances be considered sufficiently reliable and therefore valid.
- The advanced digital signature. This form is accompanied by a system where a unique code is linked to the message. This is done by service providers such as DocuSign and SignRequest. Such a code cannot be used with a forged message. After all, this code is uniquely linked to the signer and makes it possible to identify the signer. This form of digital signature therefore has more guarantees than the ‘normal’ digital signature and can at least be regarded as sufficiently reliable and therefore legally valid.
- The certified digital signature. This form of digital signature uses a qualified certificate. Qualified certificates are only issued to the holder by special authorities, which are recognized and registered by the Telecom supervisor Authority for Consumers and Markets, and under strict conditions. With such a certificate, the Electronic Signatures Act refers to an electronic confirmation that links data for verifying a digital signature to a specific person and confirms the identity of that person. The ‘sufficient reliability’ and thus the legal validity of the digital signature are guaranteed by means of such a qualified certificate.
Any form, like a handwritten signature, can thus be legally valid. Likewise agreeing by email, the normal digital signature can also establish a legally binding agreement. However, in terms of evidence, only the qualified digital signature is the same as the handwritten signature. Only this form of signature proves, because of the degree of reliability thereof, that the signatory’s statement of intent is undisputed and, like a handwritten signature, clarifies who and when is bound by the agreement. After all, the point is that the other party must be able to check that his other party is actually the person who has agreed to the contract. Therefore, in the case of a qualified digital signature, it is up to the other party to prove that such signature is not authentic. While the judge, in the case of an advanced digital signature, will assume that the signature is authentic, the signatory will carry the burden and the risk of proof in case of the ordinary digital signature.
Thus, there is no difference between the digital and the handwritten signature in terms of legal value. However, this is different regarding the evidentiary value. Do you want to know which form the digital signature suits your agreement best? Or do you have any other questions about the digital signature? Please contact Law & More. Our lawyers are experts in the field of digital signatures and contracts and are happy to provide advice.