By influencing our lives, today's technology has encouraged us to live faster and more Internet-oriented.
This is becoming an issue that everyone has to adapt to and especially in commercial life, it has an undeniable impact. In recent years, this concept has been refined even further and while new tools continue to be added to the services provided through the Internet, and Electronic Signature (“
e-Signature”) applications have started to be preferred frequently by both public entities and private people/entities. However, do all e-Signature applications have the same legal effect as their handwritten equivalents? In this article, we will touch on the legal concept of e-Signature and that contrary to popular belief, not every application can be considered as an e-Signature.
What is Electronic Signature and Secure Electronic Signature?
To ensure the confidentiality and integrity of the information transmitted between the parties and verification of the identities of parties, the e-Signature system has been established under Electronic Signature Law No. 5070 (“
Law”) by establishing a technical and legal infrastructure. The e-Signature system eliminates various identity verification problems in business and transactions through Internet, especially (i) the security of the transaction and (ii) whether the person to be addressed is the person who is a party to the transaction.
The e-Signature has the same legal consequences as wet signatures if it meets certain conditions. Within the scope of the legislation, e-Signatures must be created with a Secure Electronic Signature (“Secure e-Signature”). Secure e-Signature is defined under Law as follows: (i) It is created with a Secure e-Signature creation tool, which is only at the disposal of the signatory, (ii) It is exclusively dependent on the signatory and ensures the identification of the signatory based on a Qualified Electronic Certificate, and (iii) It enables determination of whether any changes have been made in the signed electronic data afterward.
Secure e-Signature has the same legal effect as a handwritten signature and it can replace the wet form. However, in exceptional cases stipulated by legislation, it is restricted to use Secure e-Signature for issuance, signature and endorsement of negotiable documents or legal transactions that are subject to an official form or a special ceremony by law, or guarantee agreements other than bank letters of guarantee and surety bonds issued by insurance companies residing in Turkey.
In addition, we would like to state that, although the rules governing digital signatures, biometric signatures, or derivatives are also fragmented under Turkish laws and regulations; digital signatures, biometric signatures, or their derivatives shall not be considered an e-Signature that possesses the trust, legal validity and protection provided by Secure e-Signature. In this regard, it would be useful to draw the boundary between Secure e-Signature and Digital signature applications under the Law.
What is a Digital Signature?
Under the law, trust services are limited to e-Signatures and Time Stamp, and Digital Signatures (“
Digital Signature”) provided by private entities as additional services (DocuSign, Adobe Signature, etc.) are not included in the scope. In other words, although documents could be signed online by creating a wet signature copy through applications, Digital Signatures made in this way shall not have a legal basis and validity in Turkey. Because the declarations of the persons are taken as the basis for creating the Digital Signature and administrative control shall not be provided.
Moreover; even if Digital Signatures, which are a digital signature tool by nature and do not have the "Secure e-Signature" qualification specified under the Law, provides services that have all the elements that a Secure e-Signature must have, it is not possible to consider them a Secure E-Signature without the following additional conditions:
- A qualified electronic certificate must be obtained from a qualified Electronic Certificate Service Provider for the process of creating a Secure e-Signature.
- Electronic certificates issued by an Electronic Certificate Service Provider established in a foreign country must be accepted by An Electronic Certificate Service Provider established in Turkey to be considered as qualified electronic certificates.
Therefore, Digital Signatures shall not issue a valid qualified electronic certificate without providing the aforementioned additional conditions.
In this case, would the documents signed with the Digital Signature be considered invalid? Answering yes directly to this question would be a legal challenge to process. However, under the legislation, it would be erroneous to suggest that digital signatures are valid and to directly conclude that they will have the same qualification as a handwritten signature.
In these circumstances, considering that the documents signed with Digital Signatures (missing the above additional conditions) shall not be signed with wet signatures, it would be prima facie evidence. In other words, although it is not sufficient to fully prove the legal transaction, it is possible to state that it will be in the nature of indicating the existence of the legal transaction and proves that it was given by the other party or its representative.
MORAL I KINIKOĞLU I PAMUKKALE I KÖKENEK
Duygu Bozkurt Kadirhan, Senior Associate
Irem Tanik, Associate