What role does the electronic signature play in your trading relationships?
Faster, more efficient and more innovative: the world is digitizing at a rapid pace, including within the business world. Think online meetings, digital accounting or paper archives giving way to accessible cloud storage. This digital evolution also applies to contract law, where agreements are increasingly being signed virtually. Is such an electronic signature legally valid? Does it have the same legal value as a physical, handwritten signature? And is the electronic signature also recognized internationally? Stefanie Claeys, a lawyer specializing in contract law, explains the legal framework in detail.
Whether it is about receiving a package or signing an employment contract, electronic signatures occupy an increasingly prominent place. But not every electronic signature is the same, Stefanie argues. “In general, we distinguish three types of electronic signatures, each with its own characteristics and legal consequences. These include the simple electronic signature, the advanced electronic signature and the qualified electronic signature. Although these signatures are all principally valid, the consequences differ significantly.” An overview:
1. 1 The simple electronic signature
The simple electronic signature is the simplest form of signature. Consider a scanned, hand-signed document or checking a digital box on a screen. “Although this method of signing is smoothly established, it does not provide far-reaching guarantees”, Stefanie explains. “For example, the simple electronic signature is not a conclusive method for determining whether the signer is actually who he or she claims to be, nor for guaranteeing the integrity of the document.” Thus, while principally valid, this signature cannot be equated with a handwritten signature.
For everyday actions, such as accepting a package or signing a standard letter, the simple electronic signature is sufficient. For legally binding documents, on the other hand, it is less suitable. Moreover, this signature is not automatically accepted internationally.
2. 2 The advanced electronic signature
Where the simple electronic signature offers rather little security, the advanced electronic signature builds in more guarantees. This method of signing is subject to four legal requirements:
- The signature must be uniquely linked to the signer.
- In doing so, it must be possible to identify the signer.
- The signature must be placed through a mechanism that ensures that the signer is the only one who can sign the document.
- Any subsequent changes to the signed document must be traceable.
Examples of the advanced electronic signature include the biometric signature or a signature via text message. “This signature provides more security about both the signer and the integrity of the document, but cannot be equated with a physical signature”, Stefanie explains. Like the simple electronic signature, this method of electronic signing is not automatically accepted internationally.
3. 3 The qualified electronic signature
The qualified electronic signature goes one step further and combines all the requirements of the advanced electronic signature with a qualified certificate, such as signing via Itsme, e-ID or government-issued tokens.
This is the most watertight version of an electronic signature, Stefanie confirms. “Thanks to this certificate, the qualified electronic signature is equivalent to the handwritten version. In addition, it offers the most legal certainty in terms of the authenticity of the signature and the integrity of the document. Finally, this signature is recognized throughout the European Union, provided it is based on a signature certificate issued in a Member State.”
The table below conveniently summarizes the legal validity and consequences of the three types of electronic signatures:
| Simple electronic signature | Advanced electronic signature | Qualified electronic signature |
Principally valid signature | Yes | Yes | Yes |
Document authenticity and integrity check | No | Yes | Yes |
Equivalent to a handwritten signature | No | No | Yes |
Automatic recognition in other member states of the European Union | No | No | Yes |
Lawyer specialised in contract law with a digital mindset
So there are three types of electronic signatures, the consequences of which should not be underestimated, especially in a cross-border context. Signing a lease contract, accepting general terms and conditions, entering into a distribution agreement, ... These are all essential contracts for which the right electronic signature is crucial. NOMA's lawyers master contract law down to the smallest detail and tailor their legal advice precisely to your unique needs and (digital) work environment.
When it comes to contract law, real estate and taxation, Stefanie is in the lead. After getting her master's degree in law at UGent, she deepened her knowledge during a master's degree in notarial law, a postgraduate degree in taxation and a training to become a certified mediator. In 2021, she started as a lawyer at Marlex, today NOMA, where she provides legal assistance to entrepreneurs from A to Z.
Do you have questions about digital signatures in your business? Would you like to sharpen your agreements with the help of an engaged attorney?
We would be happy to welcome you to our offices in Bruges, Kortrijk or Brussels for a no-obligation introductory meeting.
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