The Global Standard for Digital Transaction Management. Legal Aspects

Transcription

1 The Global Standard for Digital Transaction Management Legal Aspects V

2 Definition of electronic signature. According to the Law 59/2003 on Electronic Signatures, it defines an electronic signature a set of electronic data, together or associated with others, that may be used as a means of identifying the signatory, due to an audit trail that includes the verification of who sent the signed document and a timestamp. Previously the 1999/93/CE Directive of the European Parliament and Council of 13 December 1999, established a community framework for the electronic signature and defines the electronic signature as electronic data annex to other electronic data or logically associated to it, that are used as a means of authentication. Additionally, on 4 June 2012, it was approved by the European Commission a Directive Proposal of electronic identification and trust services for electronic transactions in the domestic market, with the objective of improving the current legislation and extend it to include the acknowledgment and mutual acceptance at the EU level of the electronic notification systems and other essential services related to trusted electronic services. The aforementioned laws and directives encompass the legal fundamental realm that accompany the electronic signatures in which we base the current document. Furthermore the article The new consent requirements of bank direct debits SEPA of the newspaper Expansion of 11 November 2013: com/accesible/blogs/ ribas/2013/11/09/los-nuevos-requisitos-de- consentimiento.html

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5 Types of electronic signatures. The most basic electronic signature is known as simple or basic electronic signature and it is defined as a set of electronic data, together or associated with others that may be used as a means of identifying the signatory. Some examples of this type of signature may be: Signing with a digital pen when using your credit card at a store. Marking a box on a computer or machine or applying the mouse or finger on a tactile screen. Using a username and password. Using a coordinates card. The advanced electronic signature that allows for the identification of the signatory and any subsequent change in the signed data, which uniquely associates the signatory with the data concerned and which has been created through means that the signatory can maintain under his/her exclusive control. A qualified electronic signature is an advanced signature based on a qualified certificate and generated through a secure device. The qualified electronic signature will have full legal validity to the point of making its legal affects equivalent to those of a handwritten signature. The qualified signature is that which is generated for example by the digital certificates of FNMT or Cámara de Comercio (Carmerfirma) DNIe.

6 Problems presented by electronic signatures. Unless a company has obtained from its client a qualified electronic signature, the mere fact of having a contract signed electronically is not sufficient to prove the irrefutability of the electronic signature. In other words, as its paper counterparts (let s not forget this), the documents signed electronically may be subject to disputes and in the case it has been altered, the signer can say it wasn t s/he that signed the document, thus transferring the burden of proof to the company, obligating it to demonstrate that it was in fact the said person that signed the contract. This does not happen with the qualified electronic signature that presumes certainty and conversely to the previous situation, transfers the burden of proof to the signer instead of the company. However, the qualified electronic signature is complicated to attain and use, (it must be personally requested in an office of the Social Security Administration or police, obtain the certificate, install it on the equipment, always use the same equipment in order to sign, etc.) citizens refuse to obtain and use them. On the contrary, the other two types of signature simple and advanced are much easier to use and implement, thus the ample adoption by citizens and companies. Additionally, its approbatory risk is resolved by incorporating authentication mechanisms or identifying the user, to use in the event of a dispute in order to win in trial. This authentication processes consists of proving the data such as the validity of the mobile number, , profile in social networks Facebook, LinkedIn, or Twitter, a photo taken at the time of signing, voice recording, etc.

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9 What do companies look for when considering implementing an electronic signature? With the aforementioned in mind, the preoccupation of legal departments of companies when choosing to implement an advanced electronic signature solution is, as a result, if it will be irrefutable in the case of a trial. In order words, there are three main questions that companies face when deciding to implement an advanced electronic signature: 1. Can we use the advanced electronic signature to formalize/close agreements (transactions or contracts) with our clients? Yes, thus established by Article 1 of the 1999/93/EC Directive of the European Union as well as Article 2.2 of the Law 59/2003 on Electronic Signatures. 2. In the case of use, is it admissible in trial? Yes, both article 5.2 of the 1999/93/EC Directive as well as Article 3.8 of Law 59/2003 on the Electronic Signatures establish this possibility. 3. Can the advanced electronic signature be compared to the irrefutability of the handwritten signature? Not in Spain. The Law 59/2003 on Electronic Signatures established in Article 3.4 that only the qualified electronic signature will have full legal validity to the point of making its legal affects equivalent to those of a handwritten signature. Only electronic certified documents by certification services providers such as FNMT or CAMERFIRMA are equivalent to the handwritten signature. However, a mechanism exists to resolve this aspect: authenticate the user in addition to collecting the signature.

10 In Summary. Three types of electronic signature exist: simple, advanced and qualified. The first two are easy to use and implement hence their extensive use. Nevertheless, only the qualified electronic signature is equivalent to the handwritten signature. However, the qualified signature is complicated to use and obtain, hence it is not an option to implement in a company s business processes. The other two types of signatures, notwithstanding, are much easier to use and implement and its probationary risk is resolved by incorporating authentication mechanisms or identification of the user, in the case of dispute, enable winning in trial. What DocuSign solves. DocuSign is the easiest to use and implement advanced electronic signature that has made it the most extended globally. Its technology investment of $103 million has made it a standardized product that is being used by more than 40 million people in 190 countries. Its most important characteristic for companies: the robust API, it incorporates the most methods of connection for other information systems than any other solution in the market (130 to date). Finally, the last success factor is its cost; it establishes that only the one requesting the signature pay for the license and not the number of recipients of the document. Furthermore, DocuSign is the most secure advanced signature in the market because its process of capturing the data is absolutely exhaustive including the following aspects: Audit trail of all the actions of the signer Data completely encrypted for it to be read and signed by the designated users. Unique signatures created for each user, accessible only for that user and stored in completely secure manner in an online process of data capture. Sign Document Block for the users to be able to incorporate their initials and sign in specified areas in the document. Authentication of the User using , access code and/or identity verification by third parties. Timestamp in each step of the document process. Detailed summary of all the transactions that provides complete history of the document. Finally, DocuSign has a dedicated legal counsel department and international legal team that will accompany the client in the event of a dispute.

11 For all the before mentioned reasons, DocuSign has not lost a dispute to date and has become the most extensive advanced electronic signature in the market. If you don t want to make a mistake with a provider and be a 100% sure of your selection opt for DocuSign as the electronic signature for your company and count on Branddocs as your integration partner.

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