Insights

Introduction

The electronic signature, which has the same legal consequences as wet signatures if it meets certain conditions, has taken its place in many legal systems and has enhanced commercial life. Although there are various types and applications in different legal systems, there are certain common provisions regarding the validity of an electronic signature. In this newsletter, provisions of electronic signatures in Turkish and German law are discussed.

Definition of Electronic Signature under Turkish Law

Pursuant to Article 3/b of Electronic Signature Law No. 5070 (“ESL”), an electronic signature is defined as “electronic data that is attached to another piece of electronic data or that has a logical connection with another piece of electronic data and is used for authentication purposes.” A secured electronic signature is defined under Article 4 of ESL as follows:

1. It is solely dependent on the signatory,
2. It is created with a secure electronic signature creation tool, which is only at the disposal of the signatory,
3. It ensures the identification of the signatory based on a qualified electronic certificate,
4. It enables determination of whether any changes have been made in the signed electronic data afterwards.

It is understood that the legislature classified electronic signatures as simple and secure electronic signatures and requires special conditions for secure electronic signatures. Pursuant to Article 14/2 of Turkish Code of Obligations No. 6098 (“TCO”), unless otherwise stipulated by law, texts that may be sent and stored with a secure electronic signature replace the written form of those texts. Similarly, pursuant to Article 5 of the ESL, a secured electronic signature has the same legal effect as a handwritten signature. For this reason, the condition that an electronic signature is “secure” plays an important role in terms of the written form requirement.

Among the conditions under Article 4 of ESL, the condition of being “based on a qualified electronic certificate” draws attention, because the electronic signatures that do not fulfil such conditions will not be deemed secured and, therefore, they will not fulfil the written from requirements. Pursuant to Article 14 of the ESL, electronic certificates and electronic signatures shall be provided by electronic certificate service providers. Electronic certificate service providers may carry out their activities by notifying the Information and Communication Technologies Authority (“ICTA”). Therefore, it is important that the electronic certificate and electronic signature are provided by an electronic certificate service provider that is acknowledged by ICTA.

Application Area of Electronic Signatures in Turkish Law

As mentioned above, a secured electronic signature has the same legal effect as a handwritten signature and it replaces the written form. From this point of view, it is possible to say that as a general rule, a secure electronic signature can be used in contracts where the laws require a written form requirement. However, in exceptional cases stipulated by legislation, it is also possible that a secure electronic signature may not meet the written form requirement.

Pursuant to Article 5/2 of the ESL, legal transactions that are subject to an official form or a special ceremony by law, and guarantee agreements other than bank letters of guarantee, cannot be executed with a secure electronic signature. For instance, pursuant to Article 583 of the TCO, a surety contract will not be valid unless it is made in writing, and the maximum amount that the surety will be responsible for and the date of guarantee are specified. It is obligatory for the surety to indicate the maximum amount for which they are responsible, the date of the suretyship, and, in the case of joint surety, that they are under obligation in this capacity or with any expression that has this meaning, in their own handwriting. For this reason, a secure electronic signature on a surety contract will not be sufficient on its own in terms of the form requirement. In summary, before signing a contract with a simple or secure electronic signature, it is important to review the special requirements of the relevant contract. Otherwise, the form requirements under the law may be breached.

Another matter in which the type of the electronic signature is important is the principle of evidence by deed under Code of Civil Procedure No. 6100 (“CCP”). Pursuant to Article 205/2 of the CCP, electronic data that are duly created with a secure electronic signature are deemed to be deeds. For this reason, in a possible dispute, the nature of the electronic signature will play an important role in terms of proof.

Definition of Electronic Signature under German Law

Requirements for electronic signatures under German law are controlled by European Union regulations and also local legislation. EU Regulation 910/2014 - Electronic Identification, Authentication and Trust Services (“eIDAS”)[1] regulates electronic identification and trust services for electronic transactions in the European Single Market. eIDAS entered into force to ease electronic transactions within the European Union.

Electronic signatures are regulated under Section 4 of eIDAS. In this regard, eIDAS classifies electronic signatures in three groups: simple electronic signatures, advanced electronic signatures, and qualified electronic signatures. In terms of simple electronic signatures, pursuant to Article 25 of eIDAS, an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures. Therefore, it is understood that simple electronic signatures may be accepted in certain conditions; however, they do not have the same effect as advanced or qualified electronic signatures. As for advanced electronic signatures, they must meet certain criteria under Article 26 of eIDAS (being uniquely linked to the signatory, being capable of identifying the signatory etc.). The only type of signature that has the same effect as a wet signature is a qualified electronic signature under Article 24 of eIDAS. The criteria that a qualified electronic signature should have are defined under Article 32 of eIDAS. Specifically, it must be based on a qualified certificate and such certificate must be issued by a qualified trust service provider.

In terms of German legislation, the German Civil Code (Bürgerliches Gesetzbuch) (“BGB”)[2] controls this matter. Under Article 126/1 of the BGB, if written form is prescribed by statute, the document must be signed by the issuer with his name in his own hand, or by his notarially certified initials. Written form may be replaced by electronic form, unless the statute requires otherwise. Pursuant to Article 126/a of the BGB, if electronic form is to replace the written form prescribed by statute, the issuer of the declaration must add his name to it and provide the electronic document with a qualified electronic signature. This provision, which is in compliance with eIDAS provisions, states that a qualified electronic signature has the same effect as wet-ink signature. Another important German law is the Trust Services Law (Vertrauensdienstegesetz).[3] This law includes provisions for effective application of eIDAS regulations and consists of only 21 provisions.

As for evidence law, the German Civil Code of Procedure (Zivilprozessordnung) (“ZPO”)[4] has an important role. Under German law, which has adopted the conclusive evidence system, it is not possible to accept any other evidence other than the evidence specified under the law.[5] Pursuant to Article 371/a of the ZPO, which is entitled “Evidence taken by visual inspection,” the rules concerning the evidentiary value of private records and documents shall be applied mutatis mutandis to private electronic documents bearing a qualified electronic signature. There is no provision on documents bearing a simple electronic signature.

Conclusion

Electronic signatures are classified according to various criteria in Turkish and German legislation. In European Union practice, unlike in Turkish law, there is an additional type, namely the advanced electronic signature, as an intermediate stage. In both systems, the signature type that is equivalent to a wet signature is a qualified electronic signature. Again, in both systems, this type of signature can be obtained from an authorized service provider. In terms of evidence power, it is seen that a distinction is made between simple and qualified/secure electronic signatures in both systems and that a qualified/secure electronic signature is a stronger method of proof.