Is a printed electronic signature still valid?
Emerging technologies have started to blur the lines between paper and digital worlds. If the signing process used to be straightforward: sign, organise, and then archive the paper documents in a file, now both paper and digital documents are easily mixed for the sake of efficiency and expedition. We are sure that it has already happen to you to agree on a contract/offer received by email, print it, sign it, then scan it and send it back by email. It is a lot faster. However, the legal risks that this practice might entail are less known.
Scanned handwritten signature – what legal value?
The legal value of a handwritten signature scanned (and stored digitally) can be easily challenged in court, as it is not reconised as electronic signature by some case law. So, in case of litigation, the scanned signed contract would need to be supported by other extra evidences. Furthermore, in the paper world, the “original” of the document bears a lot of importance. For example, article 1325 of the Luxembourg Civil Code indicates that deeds under private seal (actes sous seing privé) must be drawn up in as many originals as there are parties, but provides for an exception with regard to private deeds signed electronically.
“If no originals bearing wet-ink signatures are exchanged and compiled thereafter, the parties only have in their possession PDF copies of documents bearing a copy of a handwritten signature. In case of litigation, such documents only constitute a commencement of proof in writing (commencement de preuve par écrit), which might not always be advisable given the amounts at stake.” – Anne Reuland, Chief Legal & Regulatory Officer, LuxTrust.
Printed electronic signature – what legal value?
Just as a handwritten signature loses is legal value when scanned, an e-signature loses its value when printed. In fact, the e-signature is not the sign/image we see on the PDF file. It is the cryptographic algorithm that “freezes” the document. By printing it, the mechanism is lost. It can no longer be verifiable and the signature cannot be validated. What is left visible is the e-signature watermark that does not have a legal value and can be easily forged. In addition, there is no confirmation and proof regarding the identity of the signer. After having fully signed the digital document, signers should be aware that the electronic version of the electronically signed document represents the “original” of the document.
“Printing an electronically signed document may be useful for personal records, but the printed document does not benefit from the electronic mechanisms that permit to protect the integrity of the document, nor from the means to check the validity of the various electronic signatures contained therein”. – Anne Reuland, Chief Legal & Regulatory Officer, LuxTrust.
E-signature life cycle: digital archiving and long-term preservation
Most companies already have in a place a system of archiving paper documents, but this is not compatible with digital signatures and documents. While low importance documents can be stored on servers for short period of time, highly important one might need to be protected and archived for longer periods of time, so proper storage and archiving are needed. Services such as e-signature long term preservation and electronic archiving with probative value have been developed to tackle this need.
The latter, although not yet an eIDAS regulated service*, ensures that a document is stored in such a way that it guarantee its integrity and availability in case of a legal dispute. It provides evidence concerning the integrity of the documents at the time of their importation into the archive and during the archiving period. The former is a recognized and eIDAS regulated service that targets e-signature mechanism and refers to the maintenance of signatures and signed documents in order to ensure their validity for an unlimited period and beyond the period of validity of the signatories’ certificates.
Depending on the importance of the signed documents, the entire life cycle (from creation, validation to preservation) of the e-signature and digital document should be considered to ensure that the respective documents remain available and valid for the requested period of time.
*to be included in the amended eIDAS2 Regulation.
The above represents LuxTrust’s understanding of the relevant law or regulation and should not be taken, relied on or interpreted as a legal opinion. Customers are encouraged to seek independent legal advice before taking any action or decision based on this information. LuxTrust may not be held liable for damages that may result from the use and/or interpretation of the information contained in this document.