Digitization can be simply defined as the automation of processes that facilitates and enhances productivity in the workplace and other areas of life. Even the field of law and the provision of legal services have not been left untouched by digitization. For this reason, we have decided to prepare a series of articles covering various topics related specifically to the legal aspects of digitization.
An individual’s life in 21st-century society is closely intertwined with technological progress, automation, and digitalization, which are evident in all areas of life—including employment, education, and the provision of various services by the public or private sector to individuals or specific groups of individuals.
In order to prevent the spread of COVID-19 in 2020, we retreated to our homes, and society as a whole became more dependent on digital technologies than ever before. The ongoing COVID-19 pandemic has thus once again strongly highlighted the importance of these technologies in our lives and deepened the need for digitalization, the necessity of which had been anticipated long before.
Today, however, this issue is once again coming to the forefront in connection with the need to conserve energy due to the high cost of gas, electricity, and oil, as well as their scarcity due to the global geopolitical situation stemming from the ongoing military conflict in Ukraine and in connection with current discussions regarding potential measures such as reduced working hours, the introduction of so-called work-from-home arrangements or home-based education, and the performance of as many activities as possible in an efficient manner that conserves these resources.
Electronic Signing – Qualified Electronic Signature
With the gradual digitization of administration and public administration, the importance of electronic signing (not only) of legal documents is growing. A definition of a qualified electronic signature cannot be found in Slovak legislation; in this regard, it is necessary to refer to European legislation. Pursuant to Article 3( 12 of Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, a qualified electronic signature is defined as “an advanced electronic signature created using a qualified electronic signature creation device and based on a qualified certificate for electronic signatures.”
A qualified electronic signature, commonly referred to by the abbreviation KEP, is information attached to or otherwise logically associated with an electronic document which, provided the conditions set forth in Act No. 272/2016 Coll. on Trust Services are met, allows for the reliable and unambiguous identification of the natural person who created it. The use of a qualified electronic signature is tied to possession of an ID card with a chip, known as an electronic identification card (eID), which enables the holder to prove their identity in the digital world.
Basic information about the qualified electronic signature and how to use it can be found directly on the website slovensko.sk.
The QES of an electronic document primarily ensures authenticity (it is possible to verify the identity of the entity that created the signature), integrity (it is possible to prove that no intentional or unintentional changes were made to the document’s content after it was signed), and non-repudiation (the signer cannot claim that they did not create the signature on the electronic document).
To create an electronic signature, you must have an electronic document, a private key stored on a qualified device for creating a qualified electronic signature, a qualified certificate issued by a trust service provider for the public key corresponding to the private key, and the means and relevant software for creating a qualified electronic signature, whereby it is recommended to use certified software or software from trusted sources.
Private key is confidential information used to create an electronic signature or a qualified electronic signature for an electronic document. Public key is information available to the verifier, used to verify the validity of an electronic signature or a qualified electronic signature created using the private key associated with that public key. The private and public keys are cryptographically linked and therefore together form a key pair. These are concepts associated with asymmetric cryptography, which forms the basis for creating electronic signatures.
A citizen may apply for a qualified certificate for an electronic signature at the District Directorate of the Police Force when picking up their eID or at any time thereafter.
A foreign national may apply for a qualified certificate for electronic signatures at the Foreigners’ Police Department of the Police Force when picking up their eDoPP or at any time thereafter.
It is also possible to obtain a qualified certificate for electronic signature on an ID card or residence permit with an electronic chip from the comfort of your home via the eID Application, which is available along with a user manual on the website of the Ministry of the Interior of the Slovak Republic.
Given the method of generating certificates, public and private keys for qualified electronic signatures and qualified electronic time stamps, their authenticity is unquestionable in all member states of the European Union.
To explain the legal effects of a qualified electronic signature, we cite the text of Section 40(4) and (5) of Act No. 40/1964 Coll. CIVIL CODE (hereinafter also referred to as the “Civil Code”), as follows:
“(4) The written form is satisfied if a legal act is performed by telegraph, telex, or electronic means that allow for the recording of the content of the legal act and the identification of the person who performed the legal act. The written form is always satisfied if a legal act performed by electronic means is signed with a qualified electronic signature or a qualified electronic seal.
(5) For legal acts performed by electronic means, signed with a qualified electronic signature or a qualified electronic seal, and provided with a time stamp, certification of the authenticity of the signature is not required.”
It is clear from the above citation of the Civil Code that:
- any legal act signed with a qualified electronic signature or a qualified electronic seal is equivalent to a legal act signed with a handwritten signature;
- for legal acts performed by electronic means, signed with a qualified electronic signature or a qualified electronic seal and provided with a time stamp, certification of the authenticity of the signature is not required (the signature has the same legal effects as a signature certified, for example, by a notary).
In practice, however, situations often arise where certain entities refuse to accept documents signed (only) with a qualified electronic signature, or do not accept the delivery of an electronic document signed with a qualified electronic signature, or, for example, exclude the application of Section 40(4) and (5) of the Civil Code in their internal regulations. However, it is clear from the nature of these statutory provisions of the Civil Code that they cannot be deviated from even by agreement, as they are of a public law nature and are therefore mandatory. Every entity is required to accept electronic documents with a guaranteed electronic signature—provided, of course, that they meet all the requirements mandated by law and are in the form prescribed by law.
Requiring paper documents with a certified signature or refusing to accept documents signed with a qualified electronic signature and a qualified time stamp as documents with a certified signature may also be considered conduct causing harm to the other party.
Damage can generally be defined as financial loss expressible in monetary terms, whereby actual damage is compensated, including the costs the injured party had to incur as a result of the other party’s breach of duty and lost profits, or alternatively, expected profits. In commercial law, non-pecuniary harm may also arise, i.e., harm to rights and legitimate interests other than property rights. In this case, such damage could also consist of unnecessary costs incurred for the official certification of a signature on a written document. Furthermore, such conduct burdens the party with the need to physically visit the authority performing the official certification of signatures, while also prolonging and delaying the entire process of the specific legal act. Another argument to consider is that of causing damage by violating the duty of care under Section 415 of the Civil Code: “Everyone is obligated to act in such a way as to prevent damage to health, property, nature, and the environment.” The duty of care applies when a certain course of conduct is not prohibited by law. Section 415 of the Civil Code imposes on everyone the duty to exercise such a degree of caution (attention or care) as may reasonably be required of them in view of the specific circumstances of time and place and which, objectively assessed, capable of preventing or at least limiting the risk of harm to life, health, property, or the environment.
Looking ahead, it is reasonable to assume that electronic signing will gradually replace handwritten signing of paper documents. This is also supported by the fact that administrative fees for electronic submissions are half the cost of those for paper submissions. It is clear that the legislature prefers electronic submissions and incentivizes the use of qualified electronic signatures through lower fees. Replacing a paper signature with an electronic one thus saves money, reduces the time required to sign a document, and, last but not least, protects the environment.
Using a qualified electronic signature, it is possible to perform legal acts electronically that require written form in the paper-based world; in this case, the qualified electronic signature replaces the written form of a handwritten signature. Simply put, we can say that a qualified electronic signature is the equivalent in the electronic world of a handwritten signature in paper-based communication. An electronic document signed with a qualified electronic signature has the same legal effect as a paper document signed with a handwritten signature. Furthermore, pursuant to Section 40(5) of the Civil Code, if a qualified electronic signature includes a qualified time stamp, it has the legal effect of an officially certified signature.
Currently, qualified electronic signatures are used in communications conducted through the central public administration portal www.slovensko.sk, e.g., with the Commercial Register or Trade Register, the Real Estate Cadastre, notaries, bailiffs, courts, the police, registry offices, as well as in communications via specialized portals of the Financial Administration, Social Insurance Agency, or Health Insurance Agency; it can also be used for legal transactions between private entities.
