Since 2019, the number of companies that have chosen the benefits of digital signatures has increased by 55%: a real revolution in business processes because it allows digital documents to be signed quickly, easily and in conditions of maximum security, with the same legal value as a handwritten signature.
In order to better understand the value of the electronic signature, let's start by proposing an academic definition: it is considered "a set of data in electronic form, attached to or linked by logical association to other electronic data, used as a method of computer identification".
The electronic signature is therefore a computer process that combines legal and technical structures to enable valid authentication as well as proof of consent on digital documents.
What are the legal sources regulating its application in Italy?
There are 3 main references that regulate it:
- Regulation (EU) 910/2014 "eIDAS" with Commission Implementing Decision (EU) 2015/1506 of 8 September 20151;
- Digital Administration Code,
- Legislative Decree 82/2005 as amended; DPCM 22 February 2013 "Technical rules on the generation, affixing and verification of advanced, qualified and digital electronic signatures, pursuant to Articles 20(3), 24(4), 28(3), 32(3)(b), 35(2), 36(2) and 71."
The Italian legislation introduces, in some cases, more restrictions than the eIDAS Regulation, which continues to prevail over the national legislation, in all cases where two different legal provisions are in conflict.
3 types of signature for 3 different needs.
There are currently three different types of electronic signatures with different characteristics and requirements for use: electronic signature, advanced electronic signature, qualified electronic signature.
Today we will focus on the first type which, although considered the most basic, takes on full evidential value by introducing measures that guarantee the maintenance over time, security, stability and authenticity of the signed document.
Electronic signature (FE), efficient, secure, economical
The Italian legal system defines it as "the set of data in electronic form, attached or connected by logical association to other electronic data and used by the signatory to sign".
The vagueness of this definition, which does not specify technical requirements or provide for particular measures to guarantee the unambiguous connection between the signatory and the means used to create the signature, leaves room for the implementation of different solutions, each characterised by a certain level of reliability and security.
The creation of an electronic signature presupposes that the signatory possesses unique data, even stored in a device, and that it is possible to prove, with an adequate level of security, that at the date of the signature these means were actually in his possession and valid. In its simplest form, therefore, an electronic signature can be generated by a process of computer identification based on the use of identification credentials such as user-id and password, but it can also be generated with instruments characterised by a higher level of security such as: OTP (One Time Password) devices; Electronic Identity Card (CIE); Electronic Health Card (TSE/CNS); digital identity issued within the SPID System.
The legal effects of electronic signatures are laid down in Art. 25 of eIDAS "An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds of its electronic form or because it does not meet the requirements for qualified electronic signatures."
Furthermore, Article 20, paragraph 1-bis of the CAD, states that "The electronic document satisfies the requirement of written form and has the effectiveness provided for in Article 2702 of the Civil Code (ed. Effectiveness of private writing) when it is affixed with a digital signature, another type of qualified electronic signature or an advanced electronic signature [...]. In all other cases, the suitability of the electronic document to satisfy the requirement of written form and its probative value are freely assessable in court, in relation to the characteristics of security, integrity and immodifiability."