The continuing progress and diffusion of internet and electronic communications requires the drafting of special legislation to govern the juridical relations among participants.
The electronic signature legislation in Italy
Italy was sensible to issue this legislation some time ago. In particular, the Italian legal system focused on the legal value of the e-document and on technical peculiarities of the different types of electronic signatures. Therefore, when the EU decided to respond to the electronic communications phenomenon (Directive 1999/93/CE), Italy already had in place its own legislation on electronic signatures (Decree 513/1997). However, because of the different classification given by the EU Directive, the Italian legislation had to be partially modified in 2000. Later on further modifications of the legislation on the electronic signature were introduced in 2002 and 2003 in order to simplify the Italian classification of different types of signatures. This legislative evolution recently came to an end with the Digital Administration Code (hereinafter “DAC”) which came into force on 1 of January 2006.
The new topic of the DAC
In general, the DAC aims to bring the public entities closer to citizens using the electronic communication as “first” means to get in contact with the authorities, to quickly access and to directly interact with the public administration. In particular, the web will be used to make payment to the authorities, to exercise the right of access to the administrative documents, to send certified e-mail and to support disabled persons accessing technologies made available by the public administration. In addition to such public purposes, the DAC also provides a revised legislation on the e-documents and their legal value, which is also applicable in the private sector. In fact, DAC governs the requirements with which e-documents must comply in order to be valid under Italian legislation, as well as the different levels of validity of electronic signatures, e-payments, the modalities to draft corporate e-books and accounting writings and the modalities of transmission of such e-documents.
The core of this legislation – at least from a business point of view – is the definition of the legal value of e-documents and how to grant them such validity.
Legal and evidential value of the e-document
Under DAC, a document created through electronic means can be fully valid and effective from a legal perspective like any signed, hard copy document.
But when can an e-document replace a document signed by hard copy with all legal effects? To answer to this question it is preliminarily necessary to understand what kind of electronic signatures can be legally identified under DAC and their effects once used on an e-document.
A. Types of electronic signature
The DAC governs three types of electronic signatures according to their technical requirements:
a. simple electronic signature: means the assembly of data in electronic form, which are attached to or logically associated with other electronic data and which serve as a method of authentication of electronic data;
b. qualified electronic signature: means the electronic signature obtained through an electronic procedure which (i) ensures a unique link to the signatory and a unique electronic authentication of the signatory, (ii) is created using means that the signatory can maintain under his sole control, (iii) is linked with the data to which it relates in such a manner that any subsequent change of the data is detectable and (iv) is based on a qualified certificate and made through a signature-creation device;
c. digital signature: means a particular type of qualified electronic signature based on a system of related cryptographic keys (one of them private and one public) ensuring its holder (through the private key) and the receiver (through the public key), to make the origin and the integrity of an e-document clear and to verify such origin and integrity. Such signature has to comply with technical requirements provided by ministerial decrees (to be enacted).
B. Types of e-documents and their validity
- (Simple) E-document signature
In general, an e-document regardless of who created it or the method by which it was stored, transmission by electronic means and its copies, duplicates or abstract, are legally valid under DAC upon the condition that the technical requirements mentioned in the DAC (please note that details of the technical requirements are to be defined separately by ministerial decrees which will be enacted in the coming months).
Such e-document, when signed with a simple electronic signature, will be granted a limited value as legal evidence since it could be evaluated at the discretion of the judge, provided that the evaluation process is based on the existence of objective quality and safety characteristics.
- E-document signed with a qualified electronic signature or digital signature
If the e-document is signed through a qualified electronic signature or a digital signature, such e-document has the same legal value as a document created in writing in hard copy, and signed by the signatory upon the condition that it complies with the technical requirements specifically mentioned in the DAC and its implementing ministerial decrees.
Such e-document will have full legal evidential value, unless it is disowned by the alleged author of the origin of the e-document from the signatory.
It is consequently clear that using these types of electronic signatures, an e-mail or a document on the web (e.g. the specific acceptance of the unfair clauses contained in several standard terms and conditions used by service/goods providers on Internet), if signed with a qualified electronic signature or a digital signature, can be finally regarded as valid and effective under DAC.
The experiment which has been conducted over the last few months by the Italian Chambers of Commerce to manage their relationship with the enrolled companies, as well as the filing of reports and of documents required by law, through the website and only with e-documents, provides the best proof to date that society is now ready to manage such relationships through electronic means.