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Covid-19 coronavirus - E-signature: how to cope with lockdown and social distancing in Italy

Autor
Greco Massimo
Massimo Greco

Partner

Milan

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Sada Amilcare
Amilcare Sada

Counsel

Milan

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Chierici Stefano
Stefano Chierici

Associate

Milan

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Image of Elena Drusian
Elena Drusian

Associate

Milan

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Valentina Barbanti

PSL Counsel

Rome

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07 Mai 2020

Enterprises, professionals and individuals have responded to the Covid-19 pandemic by devising new systems and procedures that enable them to continue with their business activities while also complying with the lockdown and social distancing rules enacted by many different jurisdictions.

One of the areas that is directly affected is contract law and the signing of contracts, particularly in instances where all parties to the contract are usually physically present at the signing.

In this context, a possible solution is the implementation of e-signing systems, which, under certain conditions, may entirely substitute handwriting. This option, indeed, raises some questions such as what kind of e-signature can be used? Which documents can be validly e-signed? Is there any difference among the existing types of e-signatures?

Below is a brief overview of the main e-signing solutions provided by Italian Law (Legislative Decree 7 March 2005 no. 82) and European legislation (Regulation (EU) no. 910/2014) :

  • Simple electronic signature (SES): the less secure type of e-signature. It includes, g. credit card PIN. Under Italian law, SES has limited evidentiary value as the courts may freely assess the value of the specific SES adopted;
  • Advanced electronic signature (AES): among AES are included, g. the graphometric signature on tablets. Under Italian law AES may be tantamount to handwriting for signing certain agreements but its use is currently subject to restrictions, as it may essentially be used in agreements entered into between a party providing the AES solution and the party entering into the agreement (as a matter of fact it is commonly used in bank/client agreements and hospital/patient agreements);
  • SPID: a system of electronic identification used for accessing public services in Italy. Specific guidelines have recently been enacted to use SPID as an e-signature which is, in broad terms, tantamount to AES;
  • Qualified electronic signature (QES): QES is the safest type of e-signature and is generally equivalent to handwriting. It includes, g. the e-signature systems adopted by certain professionals to submit documents to PA, such as, among others things, the e-signatures of lawyers on judicial acts to be filed with courts through the internet.

The elements required for an a e-signature to qualify as a QES are technically complex and the below does not amount to a full analysis of the features of a QES. In any event the security of this type of e-signature resides in that:

  • it is created by a qualified electronic signature creation device (g. a token) that ensures, inter alia, that: "(a) the confidentiality of the electronic signature creation data used for electronic signature creation is reasonably assured; (b) the electronic signature creation data used for electronic signature creation can practically occur only once; (c) the electronic signature creation data used for electronic signature creation cannot, with reasonable assurance, be derived and the electronic signature is reliably protected against forgery using currently available technology; (d) the electronic signature creation data used for electronic signature creation can be reliably protected by the legitimate signatory against use by others" (Regulation (EU) no. 910/2014, Annex I); and
  • it is based on a qualified certificate issued by a qualified trust service provider included in a list provided by each Member State (https://webgate.ec.europa.eu/tl-browser/#/).

In any event, Law Decree 8 April 2020 no 23, providing measures to limit the spread of the Covid-19 pandemic, in order to solve the above mentioned issues in entering into distance agreements, introduced an alternative system to enter into agreements for the provision of banking services with retail clients – for which written form under penalty of nullity is mandated by Italian law – through non-certified e-mail. The system may be used for the emergency period only.

Of course a more careful analysis should be carried out on a case-by-case basis.

Our cross-border analysis and support

We have launched a number of new offerings to clients:

1. Rulefinder e-Signature: an online subscription service from aosphere

Covering 25+ key jurisdictions, this contains a law and practice analysis of e-signing in each jurisdiction, and also addresses the cross-border legal issues that arise when e-signing commercial agreements:

The service is maintained by aosphere’s dedicated senior lawyer team, will be updated on an ongoing basis and includes a horizon-scanning alerts service.  The service is available for a modest annual fee with unlimited use across an organisation. 

To find out more and to request a free trial please visit: www.aosphere.com/aos/e-signature or alternatively we would be glad to put you in touch with the aosphere team directly.

2. A managed service arrangement to support clients with the processing and administration of high volumes of documents requiring signature

Our Belfast-based team will be able to manage end-to-end signing processes using DocuSign technology, from uploading documents, guiding signatories in signing, through to monitoring progress and returning signed documents.  This service will be will offered for a fixed, per-document fee.

3. Review of policies and practices to integrate e-signing protocols into wider governance frameworks. 

To ensure any approach to e-signing is sustainable and integrated into wider governance, our A&O Consulting team can review control frameworks, risk assessment approaches and processes.

For any further information or clarification please do not hesitate to contact us.

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