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When my hair has gone white and I have retired from the practice of law, I can imagine regaling my grandchildren with stories of when I started back in the last century. I didnt even have a personal computer on my desk. Their response will likely be why would you care about a desk when you could have just put on your wearable computer?
The technological advances of the last decade have brought vast changes in the way we communicate with each other, both personally and professionally. Regardless of whether you ink your signature with a quill at the bottom of a parchment, or type your name at the end of an e-mail, the recipient must rely on certain assumptions that you sent the message. This led the Polish legislature to adopt the Act on Electronic Signatures on Sept. 18, 2001. Assuming that President Aleksander Kwaniewski signs this act soon, Poland will have crossed another milestone on the road to facilitating e-commerce.
In Polands constant push to harmonize laws with those of the European Union (EU), its not surprising that many parts of the proposed law mirror an EU directive (common framework for e-signatures). In particular, the act uses a similar distinction between regular e-signatures and safe e-signatures. A regular signature is, in a nutshell, any mark you attach to electronic data to indicate it came from you. In other words, at the end of my emails, I usually sign with a simple JG. This counts as an e-signature. However, anyone can type in these letters at the end of an e-mail.
If the document is important, better security measures are needed to ensure that an e-signature and the underlying information are authentic. Although computers give us great abilities to communicate with people quickly, they also make it easy to alter electronic documents in ways that are not readily noticeable.
While the act is technology neutral, it requires three tests that must be satisfied before an e-signature is classified as a safe e-signature:
the signature is uniquely linked to the signatory.
its created using means and data that are under the sole control of the signatory; and,
its linked to the information sent in a manner that makes it possible to identify any subsequent changes in that information.
The legal distinction between regular and safe e-signatures is that the safe version has the weight of a handwritten signature. The domestic laws of many countries, and even international treaties, specify certain types of documents whose importance requires certain formalities, such as being in writing, to prove someones intent. Polish law specifies a spectrum of agreements and documents that must be in writing. Among them, contracts for the assumption of debt, lease agreements and powers of attorney.
A safe e-signature involves some fairly sophisticated technology. Unless your understanding of encryption techniques leads you to believe that you could have helped the Polish mathematicians who broke the Enigma code, you will probably need to go to a certification provider to get your e-signature equipment, data and certificate. In fact, the vast majority of the act is devoted to how certification providers conduct business. For anyone contemplating this business, I note that the act lays down only general standards, and most of the particulars will be revealed in a number of forthcoming administrative regulations.
The key in this safe e-signature puzzle is the certificate that you receive from the certification provider. On the basis of this document, the recipient of your electronically signed message should verify that you sent it, and note any limitations, including transaction value, on the validity of your e-signature.
In the short term, the question remains as to the impact that the act might have. For businesses that have relied on electronic contracting practices with regular customers, the act will certainly help legitimize those communications. These businesses will no longer have to resort to, for example, written (in the sense of paper and pen) framework agreements on electronic ordering procedures with suppliers.
For the consumer, its a matter of what is proving to be a slower process of the consumer getting comfortable with technology, and shopping electronically.
At this juncture, remind yourself that not every agreement needs to be in writing and have a handwritten signature to be effective. Even in the digital world, an oral agreement (or one reached on the basis of my simple JG) is valid in some circumstances.
Judith Y. Gliniecki is a lawyer with, and head of the technology group, at Hunton & Williams Warsaw office.
