European Union (EU) Regulation No. 910/2014 concerning identification and trusted services for electronic transactions in the internal market (eIDAS Regulation) adopted by legislators on July 23rd 2014, is a milestone that provides a predictable regulatory environment and enables seamless secure electronic transactions between businesses, citizens and public authorities.
In this sense, the eIDAS Regulation establishes that individuals and businesses can use their national electronic identification systems (eID) to access public services in other EU countries.
In addition, the eIDAS Regulation establishes a European internal market for Electronic Trusted Services - ETS applicable as the maximum exponent of these anywhere in the world. In this sense, Art.3.16 identifies trusted services as being those which consist of:
En este sentido, el art. 3.16 identifica, como servicios de confianza, aquéllos que consistan en:
The creation, verification and validation of electronic signatures, electronic stamps or electronic time stamps, certified electronic delivery services and certificates for these services,
The creation, verification and validation of certificates for identifying websites,
Preserving electronic signatures, stamps or certificates for these services.
The lDAS Regulation ensures the cross-border validity of services for electronic signatures and stamps, certified notices and identifying websites, endowing all these services with the same legal value as the traditional paper-based processes, and provides certainty about the legal validity of all businesses and citizens who use digital interactions as their natural form of exchanging information.
With eIDAS, the European Union has managed to lay the proper foundation and legal framework for people, businesses (especially SMEs) and Public Authorities to gain secure access to electronic services and be able to conduct digital transactions on line with a simple click.
In fact, the deployment of eIDAS means more security and more convenience for any electronic online activity such as: filing tax returns, enrolling at a university, opening a bank account remotely, creating a company in another Member State, identifying internet payments, placing a bid on line to a call for tenders, etc.
ESIGN Act and UETA
ESIGN Act (2000) and its predecessor UETA (1999) create the legal framework for US electronic signature. Both have the following major requirements for the validity of an electronic signature:
Intent to Sign – Electronic signatures, like traditional wet ink signatures, are valid only if each party intended to sign.
Consent to Do Business Electronically – The parties to the transaction must consent to do business electronically. Consumers require special considerations. Electronic records may be used in transactions with consumers only when the consumer has:
(i) received UETA Consumer Consent Disclosures;
(ii) affirmatively agreed to use electronic records for the transaction; and
(iii) no has not withdrawn such consent.
Association of Signature with the Record – The system used to capture the transaction must keep an associated record that reflects the process by which the signature was created, or generate a textual or graphic statement (which is added to the signed record) proving that it was executed with an electronic signature.
Record Retention – Electronic signature records must be capable of retention and accurate reproduction for reference by all parties or persons entitled to retain the contract or record.
UETA and ESIGN establish the validity of electronic signatures as carrying the same weight and legal affect as traditional paper and wet ink signatures. The laws provide that:
No contract, signature or record shall be denied legal validity for the mere fact of being electronic in nature; and
A contract related to a transaction cannot be denied legal affect due to an electronic signature or record being used to create it.
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