Is a digital signature legally valid?
The Dutch Electronic Signatures Act has been in effect since 1999, based on the European directive. Since July 2016, this European directive has been incorporated into the new European eIDAS regulation. The directive thus has been merged with the requirements for digital identities in Europe and additional trust services have been defined alongside the digital signature, such as the digital time stamp and registered delivery of documents.
On the basis of this eIDAS regulation, the Act will also be amended to include further references to the eIDAS regulation. In essence, the format for the digital signature remains intact and according to the Electronic Signatures Act (Dutch Civil Code, article 15a) an electronic signature can roughly take three different forms:
- The ordinary digital signature
- The advanced digital signature
- The qualified digital signature
1. The ordinary electronic signature.
This is the simplest version. It concerns any form of ‘signing’ that identifies the signatory and says something about the integrity of the message. An ordinary electronic signature is, for example, a scan of a normal signature that is inserted in the document, or a ‘scribble’ made with the mouse..
2. The advanced electronic signature.
With the advanced signature, the emphasis is on the reliability of the process. The following aspects play a role in determining the degree of reliability, evidential value:
- It is uniquely linked to the signatory;
- It makes it possible to identify the signatory;
- It is created with means that the signatory can keep under his sole control; and
- It is linked in such a way to the electronic file to
which it relates (‘association’), that any subsequent modification of the data can be detected.
3. The qualified electronic signature.
As with the advanced signature, the reliability of the process is also the starting point for the qualified signature. The difference is that with a qualified electronic signature a qualified certificate is used to identify
the signatory. In addition, the qualified certificate is issued on a reliable means, whereby the signatory can associate his identity and the document using a private key instead of a general key. There are special bodies that issue those certificates, the so-called trust service providers.
The Netherlands Authority for Consumers and Markets (ACM) exercises supervision over the trust service providers.
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