[AfrICANN-discuss] The EU Law on Electronic Signatures and its Recent Report

[Anne-Rachel Inné]

INTERNET LAW - The EU Law on Electronic Signatures and its Recent Report
Martha L. Arias, IBLS Director
Wednesday, November 28, 2007
http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=1920 	

Directive 1999/93/EC constitutes the legal framework for electronic
signatures and certain certification services in the European Union
(EU).  Up to 2007, 25 EU countries have domestically adopted the
general principles of this Directive and it has positively, although
slowly, impacted the evolution of electronic commerce among them.
This article presents a brief explanation of Directive 1999/93/EC and
its complementary directives, and informs on the report by the
Commission to the European Parliament and the Council on the impact of
this Electronic Signature directive.

 The purpose of Directive 1999/93/EC (the Directive) is to facilitate
the use of electronic signatures in the EU countries and contribute to
its legal recognition.    The Directive defines electronic signatures
as 'data en electronic form which are attached to or logically
associated with other electronic data and which serve (sic) as a
method of authentication."  An example of this could be the simple
signature attached to an e-mail,

 Additionally, the Directive defines 'advance electronic signature' as
an electronic signature that is uniquely linked to the signatory, is
capable of identifying the signatory, is created using means under the
sole control of the signatory, and is linked to the data to which it
relates in a way that alterations may be easily detected.    Examples
of these e-signatures are those e-signatures that use a Public Key
Infrastructure (PKI). They use a private and public key and use
encryption technology (For instance, online credit card signatures).

 Article 5 of the Directive expressly states the legal effects that an
'advance electronic signature" and an 'electronic signature' should
have in the EU states. The Directive, article 5, rules that 'advanced
electronic signatures' shall be admissible evidence in legal
proceedings among the EU member states, provided that some
requirements are met.  First, the advance electronic signature should
be based on a 'qualified certificate;' it should be created by a
'secure-signature creation device'; it should satisfy the same legal
requirements as if it were related to a paper-base data.

 Yet, the legal effects of simple 'electronic signatures' (not
advanced e-signatures) seem to be far reaching according to the norm.
Article 5,(2) establishes that the EU member states must ensure that
electronic signatures are effective and admissible evidence in legal
proceedings even if they are in electronic form and do not meet the
above listed requirements.  Thus, your signed e-mail is certainly
admissible evidence in the EU member states.

 After the adoption of this Directive on Electronic Signatures in
1999, the EU has implemented new legislation that complements this
Directive and creates an appropriate legal environment for e-commerce
and e-transactions.  For instance, Directive 2001/115/EC on electronic
invoices.  Directive 2001/115/EC recognizes the validity of
electronically sent invoices that use advance electronic signatures.

 Another example of EU Directives complementing the one on electronic
signature is the public procurement Directives.  These Directives do
not explicitly state the type of e-signatures to be used on public
procurement but notes that the use of electronic signatures must be
according to Directive 1999/93/EC.   These Directives though, call for
uniformity on the domestic institution of e-signatures for public
procurement so there are not barriers for e-procurement transactions
among the EU states.

 But in the 'real world' (or practical world- whatever your philosophy
is), how is this Directive really impacting the development of
e-commerce in the EU states?   According to the European Parliament
and the Council August-2006 report, the use of advanced electronic
signatures in the EU has been less than expected and it has reported
some slow development.  Thus, the Commission cannot provide a
comprehensive assessment of the exchange of electronic signatures
among EU states.  The Commission deems that economic grounds are the
reasons for this sluggish development of e-signature exchange among
the EU states.   The Commission says service providers do not have
enough incentives to create interoperable solutions or
'multi-application electronic signature.'  They rather want to develop
solutions for their specific services, like the banking sector, etc.
Besides lack of interoperable solutions, comprehensive solutions for
electronic archives constitute another problem that precludes the
development of e-signature interchange among the EU members.

  The Commission notes that e-procurement in the EU have reached an
interesting level and promises to drive the market in the future.  The
role of e-government applications have is set on the i2010 initiative
19.

 The Commission concludes it report saying that they will closely
monitor the use of electronic signatures in the EU and "particular
emphasis will be on interoperability and cross-border use of
electronic signatures. The Commission will encourage further
standardization work in order to promote the interoperability and use
of all kinds of technologies for qualified electronic signature in the
internal market."