Information Technology LawElectronic Signature and Legal Validity

Digital transformation is radically changing the way we do business and our legal processes. As paper-based transactions are increasingly replaced by electronic media, the need for mechanisms that ensure the security and legal validity of documents has also increased. One of the most important technological and legal tools that responds to this need is the “electronic signature”. The Electronic Signature Law No. 5070, which entered into force in Turkey in 2004, has drawn the legal framework of electronic signature and paved the way for digital transactions by recognising “secure electronic signature” as equivalent to wet signature. However, there are still many questions about what an electronic signature is, how it works, in which cases it replaces a wet signature and its legal evidentiary nature. In this article, we will discuss in detail the legal infrastructure of electronic signature, its types, its comparison with wet signature and its practical usage areas.

What is an Electronic Signature? Basic Concepts According to the Electronic Signature Law, an electronic signature is defined as “electronic data that is attached to another electronic data or has a logical connection with electronic data and is used for authentication purposes”. This definition means much more than a simple “scanned signature” image. An electronic signature fulfils three basic functions using cryptographic (encryption) methods:

1. Authentication: Verifies the identity of the person signing the document.
2. Data Integrity: Guarantees that the document has not been altered after it has been signed. The signature becomes invalid in case of the slightest change in the document.
3. Non-repudiation: The signatory cannot later deny that he/she signed the document.

Secure Electronic Signature and its Legal Consequences (Art. 5 EİK) The Electronic Signature Law attributes a special importance to the concept of “secure electronic signature”. Because the most revolutionary provision of the law is related to the legal consequences of secure electronic signature:

In order for an electronic signature to be considered “secure”, it must fulfil the following conditions

• It must be exclusively bound to the signatory.
• It must be created with a secure electronic signature creation device (such as USB token, smart card) that is only at the disposal of the signatory.
• Providing the identification of the signatory based on a qualified electronic certificate.
• It enables the determination of whether any subsequent changes have been made to the signed electronic data.

“Qualified electronic certificates” are issued by Electronic Certificate Service Providers (ECSPs) authorised by the Information and Communication Technologies Authority (ICTA). Therefore, e-signatures obtained from ECSPs in Turkey have the status of secure electronic signatures.

Legal Validity: E-Signature vs. Wet Signature

• Rule of Equivalence: A document signed with a secure electronic signature is conclusive evidence pursuant to Article 205 of the Code of Civil Procedure (CCP). In other words, it is considered valid until its forgery is proved and constitutes strong evidence in court, just like a wet-signed promissory note.
• Exceptions: The law still requires some important legal transactions to be made with a wet signature. These exceptions are as follows:
  1. Legal Transactions Subjected to Official Form or a Special Ceremony by Law: The most important transactions falling under this category are transactions such as real estate purchase and sale contracts (made with an official deed in the land registry office) and marriage (made in the presence of a marriage officer).
  2. Guarantee Contracts: Contracts that guarantee the debt of a third party, such as a surety contract, cannot be made with a secure electronic signature as required by law. The main purpose of this rule is to protect the person who is under a heavy obligation such as a guarantor.

Areas of Use: Secured electronic signature can be used in all legal transactions and official processes with exceptions. Common areas of use are as follows:

• Public Applications: E-Government, UYAP (National Judicial Network Project), MERSIS (Central Registry Registration System), KEP (Registered Electronic Mail), e-prescription, e-invoice, e-archive.
• Commercial Life: Signing all kinds of commercial contracts (sales, service, distributorship, dealership, etc.), banking and finance transactions, signing general assembly and board of directors decisions.
• Personal Use: Filing a lawsuit, initiating enforcement proceedings, sending petitions to official institutions.

Simple Electronic Signature and its Legal Nature: Other electronic signatures other than secure electronic signature (e.g. writing a name and surname at the end of an e-mail, pasting a scanned signature image of a document, ticking the “I approve” box on a platform) “simple electronic signature”. Such signatures are not equivalent to wet signatures and do not constitute conclusive evidence. However, they may be accepted as “preliminary evidence” under the CCP and may be used as a means of proof in court when supported by other evidence (e-mail correspondence, witness statements, etc.).

Secured electronic signature is a revolutionary tool that enables legal transactions to be carried out safely, quickly and effectively in the digital world. Law No. 5070 has eliminated the doubts about the evidential quality of digital documents by recognising the same legal force of secure electronic signature as wet signature. Except for exceptional circumstances, transactions made with secure e-signature have full legal validity. It is possible for businesses and individuals to make their processes more efficient by taking advantage of these opportunities offered by e-signature in the digital transformation process. However, when in doubt about which type of signature is appropriate for which transaction and what the legal consequences will be, seeking the opinion of an IT law expert would be the best approach to eliminate possible legal risks.