The question of the validity of electronic signature devices is back on the agenda with several recent case law, recalling the importance of choosing certified solutions.
At least 20 years ago [L. n° 2000-230, 13 mars 2000 portant adaptation du droit de la preuve aux technologies de l’information et relative à la signature électronique, JO 14 mars, p. 3968.] that the electronic signature is admitted as proof. Indeed, more and more documents are created electronically and the affixing of the electronic signature gives them the required authentication guarantees.
Several court decisions have recently brought back to the agenda the question of the validity of existing electronic signature devices and therefore of commitments entered into electronically.
This recent case law is an opportunity to recall the rules governing the implementation of the electronic signature and to secure electronic documents.
The guarantees of the electronic signature
Writing in electronic form has the same probative value as writing on paper, provided that the person from whom it emanates can be duly identified, and that it is drawn up and stored in conditions such as to guarantee its integrity (C 1366).
The electronic signature has a dual function: it manifests the consent of the signatory to the content of the document on which it is affixed; it also serves as a means of identifying the signatory, in that it is supposed to be personal and unique (C. civ., art. 1367).
Thus, unlike the handwritten signature, the electronic signature is presumed to emanate from a person only if it is established that use was made, to sign electronically, of a reliable identification process.
The “qualified” electronic signature
The “qualified” electronic signature [Règlement eIDAS, art. 25.2] is the one which, by right, is equivalent to the handwritten signature.
The identity of the signatory is based on the use of a so-called “qualified” electronic certificate which is issued to the signatory by a “qualified” electronic certification service provider (PSCE). This service provider is subject to a complex qualification and accreditation process.
The certiﬁcate is in a way an electronic identity card which must make it possible to establish a link between a person and his electronic signature. To be “qualified”, the electronic certiﬁcate must include a certain number of mandatory information, in particular the identity of the provider of electronic certiﬁcation services (PSCE) or even the indication of the start and end of the period of validity of the certiﬁcate. electronic.
As for the role of the PSCE, it is decisive since it must ensure authentication, through the use of an electronic certiﬁcate. He must also keep, possibly in electronic form, all the information relating to the electronic certiﬁcates which could prove necessary to prove the electronic certiﬁcation in court.
In practice, the opinion of the judges
The judges had the opportunity on several occasions to examine the various technical processes of electronic signature.
Sometimes, they bypassed the technical component to rely on a range of external clues. For example, the Court of Appeal of Douai [Douai, 8 e ch., 1 re sect., 2 mai 2013, RG n o 12/05299, Monabanq (SA) c/ M me X., CCE 2014, comm. 22, obs. É.-A. Caprioli.] admitted the validity of an addendum signed online on the grounds that the reliability of the electronic signature was not contested by the borrower. The Court of Appeal of Lyon [Cour d’appel de Lyon – ch. 06 – 2 décembre 2021 – n° 20/01759] considered that the existence of a loan concluded electronically was “established by the justification of the payment of the funds […] into Ms. X’s bank account. As for the Orléans Court of Appeal [Cour d’appel d’Orléans – ch. sécurité sociale – 26 janvier 2021 – n° 53/2021], it held that a scanned handwritten signature – which is therefore neither a certified signature nor an electronic signature – can be authentic: “the fact that the apparent signature of Mr. Y is ‘scanned’ does not in itself to question its authenticity. Considering that this process is not prohibited by any text, the High Court deduced that the proof of the non-authenticity of the scanned signature had to be reported, which was not the case in this case.
But, when they examine the technical device, the judges were able to observe, on several occasions, that the conditions of reliability of the electronic signature were not met and drew severe conclusions from this: the acts concerned do not had not been validly signed [J. prox. Paris 2 e arr., 30 avr. 2013, Léonard S. c/ Free ; J. prox. Rodez, 10 avr. 2014, RG n o 91-12.000118, F. Abderrahmane c/ Free.] ! Chambery Court of Appeal [Cour d’appel de Chambéry – ch. 02 – 10 février 2022 – n° 20/00880] thus ruled that the loan contracts in electronic form on the basis of which a consumer credit institution assigned an individual in payment were devoid of probative value. The signature tool used in this case was provided by a company that did not have the qualification for the certification of electronic signatures. The sanction is heavy with consequences: the loan contracts are not enforceable against the defendant, the latter therefore not being bound by the obligations arising from these contracts.
In an all-digital era, we will remember the importance of carefully choosing a certiﬁed electronic signature creation device whose validity judges are inclined to accept.