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

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.

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