The electronic signature and the (new) Belgian law of evidence (part 1)

With the entry into force of the reformed law of evidence on November 1, 2020, the Belgian legislator simultaneously anchored the electronic signature in accordance with previously issued eIDAS Regulation. Under Belgian law, a distinction must be made regarding the (legal) validity of an electronic signature and the legal consequences attributed to this electronic signature.

This article briefly discusses what the law understands by electronic signatures and what types can be distinguished.

The electronic signature

In this section we describe which categories of electronic signature can be distinguished in our law and what each of them exactly means, based on Article 3, 10° to 3, 12° of the Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 (eIDAS Regulation).

1. Three categories of electronic signature:

The definition of an electronic signature is included in the new Civil Code (8.1, 3° BW). The legislator refers for the definitions to Art. 3, 10° to 3, 12° eIDAS Regulation and distinguishes in particular the ordinary electronic signature (i), the advanced electronic signature (ii) and the qualified electronic signature (iii). Different legal effects are attached to each (Articles 3.10 - 3.12 eIDAS Regulation).

• The ordinary electronic signature essentially amounts to any technique that allows to identify the author (identification function) and demonstrates the expression of will of a contracting party (confirmation function).

Examples include: the scanned signature, signature with a pen on a touch screen, recognition of fingerprints, payment by bank card via a PIN, and a login and password to access a website.

• The advanced electronic signature is uniquely linked to the signatory (i), allows the signatory to be identified (ii), is created using electronic signature creation data that the signatory, with a high level of trust, can use under his sole control (iii), and is linked to the data signed with it in such a way that any subsequent modification of the data can be detected (iv). function) and demonstrates the expression of will of a contracting party (confirmation function).

Examples include: e-mail authentication, SMS authentication and IP addresses.

• The qualified signature is an advanced electronic signature created by a qualified electronic signature creation device based on a qualified electronic signature certificate. It requires the intervention of a qualified trust service provider who provides the secure signature device with a qualified certificate.

Examples include: the eID and Itsme signature, DocuSign, etc.

Important to note, Belgian law makes no distinction regarding the validity of the above electronic signature. The three types of electronic signatures are all fundamentally valid under Belgian law. Even more, the Belgian legislator has made no distinction whether or not a signature is placed by hand or electronically (art. 8.1. 6° BW).