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The Warsaw Voice » Law » November 8, 2002
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E-Signature—Passport to the Future
November 8, 2002   
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Following general EU trends, the Polish E-Signature Act and related regulations came into force on Aug. 16, 2002. From now on the e-signature will be on equal footing with the traditional handwritten signature, thus paving the way for large-scale development of online contracts and e-commerce. Moreover, this will enable official forms such as tax returns to be submitted online.

However, holding up implementation of the new regulations is the failure of the Minister for the Economy to get the central certification office set up in time. Eventually running the show will probably be Centrast S.A., a subsidiary of the National Bank of Poland. It will issue authorizations to entities providing certification services, primarily including “private keys" and sale of verifying devices for cards.

But first... what is an e-signature?

Basically, it is a set of electronic data identifying a person putting an e-signature to a document. E-signatures in the broad meaning of the term have been used for some time now—for example, in e-banking—but have not been equivalent to handwritten signatures from the legal point of view. Under the Act, such signatures should be regarded as “unqualified signatures," as opposed to “secure e-signatures," which are to be fully secure, but will necessarily entail use of special devices. A secure e-signature is attached to the data (document) in such a way that any later change to this data would be detectable.

The data constituting the signature is unique, as it is based on a remarkably complex encoding algorithm. In practice, it will be recorded in electronic form on a microchip. It does not appear on the computer screen and will not be a credit card-style PIN. This is the so-called “private key." In order to use it, the user will have to possess a special verifying device, which will serve as an accessory to the computer.

The recipient will have to use a valid qualified certificate (“public key"), which will be accessible to all interested parties. The recipient can use this public key to check whether the e-signature in question actually belongs to the owner of the private key. So, in brief, an e-signature is composed of the following basic elements: document (in electronic form) + signature (private key) + certificate (public key).

However, a declaration of will submitted in electronic form together with a secure e-signature verifiable by a valid certificate is only equivalent to the so-called “ordinary written form." That is why you cannot draw up a will, make out a promissory note or a check or execute a marriage certificate online. Moreover, don't forget that numerous contracts must be concluded in the form of a notarial deed (sale of real estate) or with notarized signatures (sale of shares in a limited liability company, sale of an enterprise).

Contractual parties have discretion over choosing the electronic form for their legal acts, but both parties must consent. Please note, however, that some legal scholars say that the fact of your company putting its e-mail address on its letterhead should be treated as an implicit expression of consent to such form.

Salans D. Oleszczuk Kancelaria Prawnicza Sp.k., ul. E. Plater 53, Warsaw, tel. (+48 22) 520 63 00, fax: (+48 22) 520 64 00, e-mail: warsaw@salans.com

Zbigniew Korba
The author is an associate at Salans Law Firm. He specializes in corporate law, mergers and acquisitions, e-commerce and banking law.
www.salans.com
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