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Docusign DTM - Legal aspects

Electronic Signatures and their legal aspects. Meaning

Definition of electronic signature.

European Spanish Law 59/2003, concerning electronic signatures, defines one as the set of data in electronic form, attached to or associated with others, which can be used as a means of identifying the signer. In its advanced and qualified forms, an electronic signature will allow us to:
  • Unmistakably identify a signer we only know telematically.
  • Detect any subsequent change in the signed document.
  • Prevent the signer from subsequently denying signing part of the document.
These features make it an essential element for the development and consolidation of secure e-commerce.

In view of this importance, and in order to promote a single digital market and to establish a community for the use of electronic signatures and other trusted services Regulation 910/2014 of the European Parliament and of the Council of 23 July 2014 concerning electronic identification and trusted services for electronic transactions in the internal market was passed (“ eIDAS ”).

This standard will be fully implemented in all Member States of the European Union from July 2016, abolishing both the previous Directive 1999/93/ EC, concerning electronic signatures, as well as those national laws and regulations whose content would be contrary to the provisions set forth in eIDAS.

All of the above laws, regulations and directives encompass the fundamental legal environment accompanying electronic signatures on which we base this document, in addition to the article "The new consent requirements in SEPA direct debits" from the journal Expansion dated November 11th 2013: https://www.expansion.com/accesible/blogs/ribas/2013/11/09/los-nuevos-requisitos-de-consentimiento.html
We will go to court with you
Al though DocuSign has a successful track record in delivering information and all the evidence our customers need to defend their documents against repudiation, we are available when it comes to testifying in court to support the legal and technical validity of the documents. So don't worry, you will not only have a tool that is absolutely legal in the European, Spanish and American systems to sign your documents electronically, but we also offer an accompanying service in case of trial.

Types of electronic signatures

The most basic version of an electronic signature is known as a simple electronic signature, and eIDAS defines it as “'Data in electronic form attached to other electronic data or logically associated with it that the signer uses to sign”. We can find this type of signature in examples such as:
  • Signing with an electronic pen when using a credit or debit card at a store.
  • When marking a box on a computer, by typing or applied with mouse or finger on a touch screen.
  • Entering a username and password.
  • Using a code card.
The advanced electronic signature is the electronic signature which makes it possible to identify the signer (identity) and detect any subsequent change in the signed data (integrity).It is also linked to the signer in a unique way and has been created using means that the signer can maintain under his or her sole control.

Lastly, a qualified electronic signature (recognized under previous regulations) is considered to be an advanced electronic signature based on a certificate that is recognized and generated by a secure signature creation device.

A qualified electronic signature has the same value in relation to the details recorded in electronic form as a handwritten signature has in relation to those recorded on paper. The qualified signature is one that is generated, for example, by the digital certificates of the FNMT or the Chamber of Commerce (Camerfirma) and the electronic National Identity Document.

Problems arising with electronic signatures

A contract signed electronically is a private document and, like their paper counterparts (let us not forget this), may be subject to disputes.

In case of conflict, the signer can say it was not he or she who signed the document, or that the signed content was not that presented. In this situation, if we have a simple or advanced electronic signature, the burden of proof falls on the company, which must show that the document presented is genuine and that it really was that person who signed it.

If, by contrast, a qualified electronic signature has not been used, the company will only have to prove that it has followed the stipulated process for obtaining this signature (that it is based on a qualified certificate, has been generated by a secure signature creation device, etc.) and, if the indicated procedure has been followed, it will be the user who will have to demonstrate any circumstance that might impede relating the signed document to him or her.

However, the qualified electronic signature is difficult to obtain and use (the user needs to apply for it, appear in person in social security office or police station, obtain a certificate, install it on a computer, always use the same computer to be able to sign, etc .) and citizens refuse to obtain it and make use of it.

In contrast, the other two types of simple and advanced signatures are much easier to use and implement, with the result that citizens and businesses are making extensive use of them. Furthermore, its evidential risk is addressed by incorporating mechanisms of authentication or user authentication, so that a court case can be won in the event of litigation.

These authentication procedures consist of verifying the accuracy of the data captured at the time of signing such as the veracity of the mobile number and whether it belongs to the user, the email, the profile on social networks such as Facebook, LinkedIn or Twitter, the image or voice of the person signing, etc.

What are companies looking for when implementing an electronic signature?

All told, the concern for the legal departments of companies deciding to implement an advanced electronic signature is, therefore, whether it will be irrefutable in the event of legal action.

Es decir, tres son las preguntas fundamentales a las que se enfrentan las compañías a la hora de decidir poner en marcha una firma electrónica avanzada:
  • Can I use the advanced electronic signature to close deals (transactions or contracts) with my clients?
    YES. As required by Article 23 of the Law concerning Services in the Information Society, the private electronic document is a perfectly valid medium for any type of contract, except those relating to family law and inheritance and those requiring medium the presence of a notary public (e.g. notaries and property registrars). In addition, an advanced electronic signature will provide us with an important evidentiary soundness in aspects such as the identity of the signer, his or her intervention and the subsequent non-amendment of the contract involved.
  • If used, will it be admitted as evidence in court?
    YES. Both the various laws governing prosecutions and the rules that deal with electronic signatures (Article 25 of eIDAS and 3.8 of Law 59/2003, concerning electronic signatures, etc.) expressly provide for this possibility.
  • Can this advanced electronic signature be irrefutably equated with a handwritten signature?
    In Europe NO. Both eIDAS and Law 59/2003 concerning electronic signatures, in Articles 25.2 and 3.4 respectively, stipulate that only the qualified electronic signature will have the same value in electronic form as the handwritten signature on paper.
Thus, only electronic documents certified by certification service providers such as FNMT or CAMERFIRMA equate to a handwritten signature. However, there is a mechanism for resolving this: authenticating the user in addition to collecting his or her signature.

To sum up

There are 3 types of electronic signature: simple, advanced and qualified. The first two are easy to use and implement, and therefore their widespread use. On the one hand, only the qualified electronic signature is equal to the handwritten signature. Nonetheless, the qualified signature is complicated to use and obtain, and hence it is not an option to implement in companies' business processes.

The other two types of signature are however much simpler to implement and their probative risk can be resolved by incorporating authentication mechanisms or user authentication, so that, in the event of litigation, the court case can be won.

What does DocuSign resolve?

DocuSign is the advanced electronic signatures that is easiest to use and implement, thus its far-reaching use worldwide. Its technological investment of 103 million dollars has made it a standardized product that is being used by over 40 million people in 190 countries. Its most important feature as far as companies are concerned: its colossal API, which incorporates more methods for connecting with the company's information systems than any other solution in the market (130 to date). Lastly, the final success factor is price, which establishes that only the party requesting the signature pays for the user license, and payment is not calculated by to the number of recipients.
DocuSign is also the most secure advanced signature on the market because its comprehensive data collection process includes the following aspects:
  • An audit history of all the actions of the signers.
  • Fully encrypted data so that documents can be read and signed by the designated users.
  • Unique signatures created for each user, accessible only to the user and stored securely through an online data collection process.
  • Sign Document Block o cuadros de firmas del documento para que los usuarios puedan ‘incorporar sus iniciales’ y ‘firmar’ en las áreas específicas del documento.
  • User authentication using e-mail, a password and/or third-party identity verification.
  • A time stamp at each step for the documentary process.
  • A detailed summary of the entire transaction, providing the full history of the document.
Lastly, DocuSign has an international legal and judicial counsel department that will accompany the client in the event of a conflict.

For all the above reasons, DocuSign has not lost any lawsuits to date, and has become the most widespread advanced signature on the market.

If you want to make sure of your supplier and be 100% secure in your choice, choose DocuSign electronic signature solution for your company and rely on Branddocs as your integration partner.

DocuSign-OpenTrust is registered in the European list of Service Providers. For more information: https://www.tuvit.de/en/certification-overview-1265-trusted-site-etsi-certificates-1334.htm

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