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Legal and Regulatory Issues concerning the TTPs and Digital Signatures - Final Report

In our world, more and more transactions take place on open telecommunications network, such as the Internet, giving the chance of concluding all kind of contracts. The world-wide explosion of electronic commerce and the developments in the computer and telecommunications sectors are deeply changing the delivery and availability of information, acts, transactions and services.

For this reason, there is a growing demand from industry and users for new types of signature, to effectively substitute the hand-written signature in the electronic environment, granting integrity, confidentiality and authenticity of information and documents.

Digital signatures and the electronic document can assure these functions, using signature techniques based usually on asymmetric signature keys, certified by a Trusted Third Party, who shall reliably identify persons applying for signature key certificates and verify their legal capacity, confirm the attribution of a public signature key to an identified physical person by means of a signature key certificate, always maintain the on-line access to the signature key certificates with the agreement of the signature key owner and take measure so that the confidentiality of a private signature key is guaranteed.

This paper gives an insight in the legal issues of hand-written signature and paper document versus digital signatures and electronic document, comparing them from a legal point of view (Chapter I).

Chapter II describes the management of the keys, the public key infrastructure, the role and functions of trusted third parties and the problems of key escrow and key recovery

Like every innovation causing a technological breakthrough, the introduction of digital signatures to assure electronic documents is raising many issues such as the applications it will have and the legal and regulatory issues it will come across. The main solutions will have to be found to make digital signatures workable in a transnational environment, as is the virtual workspace in which electronic transactions will increasingly take place.

Digital signatures can be used to sign either private documents, such as inter vivos and mortis causa deed polls and contracts, official actions, etc.

In the present legal framework, in absence of laws and regulations which equalise the use and functions of digital signature to hand-written signature, a digitally signed document will incur in some legal problems, especially of evidence, either in civil law countries or in common law countries.

Chapter III outlines conditions and problems for the use of electronic documents subscribed with digital signature, and indicates which kind of acts and contracts can be concluded with this system.

In order to highlight these problems and to check the availability of studies on electronic documents, digital signature and trusted third parties, chapter IV reports on the present situation of legislation, laws, draft laws and case laws on digital signature in the fifteen European Member States.

• no law is needed nor should be issued: private persons can immediately use digital signatures in their agreements;
• digital signature cannot be used without a law ruling its application.

• through a law which provides for a rule of equivalence of written and digital signature;
• with a new and completely articulated law;
• with a law of principles, which defers to a statutory instrument the definition of criteria and ways of application.

• it could define an electronic document, a digital signature and a trusted third party and rule only their attribution, role and use;
• it could define and rule the use of electronic documents, digital signature and trusted third parties and could also define to which kind of acts this system could be applied, where and when an agreement is concluded, what a virtual domicile is etc.

Chapter V analyses these different approaches, concluding the paper and describing what a directive should rule.

CLICK HERE TO DOWNLOAD THE REPORT

Feedback and comments regarding INFOSEC,
should be addressed to:

DG XIII - C.4
European Commission