UNCITRAL Colloquium Legal issues related to Identity Management and Trust Services Vienna - 22 April Trust Services

Transcription

1 UNCITRAL Colloquium Legal issues related to Identity Management and Trust Services Vienna - 22 April 2016 Trust Services Hervé Jacquemin University of Namur (CRIDS) Member of the Brussels Bar

2 Trust is a key factor for the development of digital economy across the world Technical and legal challenge «Trust service providers» and «trust services» Already in «paper» environment To be adapted (or rediscovered) to digital age

3 Agenda 1. Why and how should we regulate trust services? 2. Which trust services? 3. Main principles applicable to trust services 4. Requirements and legal effects

4 1. Why and how? Why do we need trust services? Open systems where trust must be built step by step Lack of legal or technical certainty in public or private transactions (B2B or B2C) Object of uncertainty : Who are you? Moment of the message? Transmission of the message? Content of the message? Retention of the message? with corresponding evidence Especially in international transactions Key component of cybersecurity

5 1. Why and how? How should we regulate trust services? Hard Law / Soft Law? International / national level? Contract / regulation? Consistency, easiness, cost effectiveness

6 2. Which Trust Services? Main functions of trust services in the context of electronic transaction Identity management Evidence of the moment Evidence of the transmission (sending and receiving) Evidence of preservation (without any modification) Evidence of content integrity (and confidentiality)

7 2. Which Trust Services? UNCITRAL texts? United Nations Convention on the Use of Electronic Communications in International Contracts (2005) UNCITRAL Model Law on Electronic Signatures (2001) UNCITRAL Model Law on Electronic Commerce (1996) Electronic signature (+ some provisions on retention of data message) Extend principles to other trust services?

8 eidas regulation : 2. Which Trust Services? Electronic signature Electronic seal Electronic time-stamps Electronic registered delivery service Website authentication Other trust services? < practice < regulated by hard (national) law, soft law or contract E.g. : Archiving, Escrow, payment services, etc.

9 Non-discrimination 3. Main principles Between : electronic form and paper form qualified or advanced trust service and non-qualified trust service E.g. : «an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is an electronic form or that it does not meet with the requirements of qualified electronic signature» (art. 25 reg. eidas) Beneficiary of such principle? Contract parties and judge States, when enacting new regulations?

10 3. Main principles Technological neutrality But technical certainty must be ensured with transparent technical norms, updated when necessary Functional equivalence? Should there be a «paper service» and a corresponding «electronic service», functional equivalence must be guaranteed between both services Eg. : electronic signature and handwritten signature

11 4. Requirements and legal effects eidas regulation : main distinction between qualified and non-qualified trust services (and trust service provider) Non-qualified trust services and providers (low requirements) : Data protection Security requirements (art. 19) Possible a posteriori control by the supervisory body

12 4. Requirements and legal effects Qualified trust services and providers (hard requirements) : At least requirements of non qualified trust services and providers Additional requirements Prior authorisation Audit / 24 months Technical, functional, financial, organisational requirements Trusted list (+ EU trust mark)

13 4. Requirements and legal effects Legal effects (reg. eidas) Effect of trust service Liability International Qualified Equivalent legal effect / presumption Burden of proof on the provider Recognised in other MS Non-qualified Non-discrimination Burden of proof on the user

14 Conclusion Origin of the trust? Risk management Balanced proposition regarding requirements and effects

15 - Thank you for your attention! Questions?