Sponsored briefing: Ink to code: analysing electronic signature legitimacy in the EU and Turkish legislation

Turhan Mergen, Lalin Elkatip and Zehra Kıryolcu of Diri Sevi Mergen report on electronic signature legislation in Türkiye and its connections with the EU

Economic globalisation has fostered an interdependence among national economies worldwide. This phenomenon, brought about by the swift cross-border movement of goods, services, technology and capital, has developed and increased international trade. In relation to this economic surge, the pace of life across various aspects, encompassing communication, logistics and access to information, has accelerated. This accelerated pace, both a catalyst and a consequence of economic globalisation, has increased the demand for rapid processes in both daily and corporate life. Consequently, the adoption of digital methods has surged, a transition further accelerated by the urgency imposed by the Covid-19 pandemic.

During the peak of the pandemic, businesses, constrained by lockdowns, had to find alternative means to sustain their workflows seamlessly. The appeal of digital methods lies not only in their swiftness but also in their capacity to automate processes, enhance accessibility and ensure superior records management compared to traditional paper-based structures. Online systems and digital tools have been seamlessly integrated into various stages of business flows, including electronic signatures like DocuSign or Adobe Sign, as well as digital signatures – legally distinct concepts – gradually replacing traditional wet signatures.

For global companies operating in various countries, aligning practices across subsidiaries proves challenging due to legislative disparities. Turkish subsidiaries, in particular, grapple with restrictions on electronic signature use, arising from disparities in Turkish and EU legislation. In contrast, the EU witnesses widespread integration of these tools into business processes, with over eight billion electronic and digital signature transactions processed through Adobe Document Cloud last year alone, as reported on their official website¹.

Understanding electronic and advanced electronic signatures

The EU directive 1999/93/EC on electronic signatures² (EU directive) laid the groundwork for electronic signature legislation in the EU. Subsequently, Türkiye incorporated this directive into its legislation with the law on electronic signatures (Electronic Signature Law No. 5070 (e-signature law)). Both legislations differentiate between electronic signatures and advanced electronic signatures. An electronic signature, defined similarly in both the EU directive and e-signature law, refers to electronic data attached to or logically associated with other electronic data, serving as a method of authentication. An advanced electronic signature (AES), in line with the EU directive, must meet specific criteria, including uniqueness, capability of identifying the signatory, creation using means under the signatory’s sole control and linkage to data in a way that detects subsequent changes, similar to the concept of secure electronic signature (SES) in the e-signature law. In Türkiye, an SES must be provided by the authorised SES providers³ listed by the Information and Communication Technologies Authority (the authority) for such signatures to bear the same legal enforceability with the handwritten signatures.

‘Turkish subsidiaries, in particular, grapple with restrictions on electronic signature use, arising from disparities in Turkish and European Union (EU) legislation.’
Turhan Mergen, Lalin Elkatip and Zehra Kıryolcu, Diri Sevi Mergen

The EU directive became obsolete with the introduction of Reg (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (e-IDAS). Unlike the EU directive, e-IDAS⁴ accepts electronic signatures with lower security assurance. It introduces three types of electronic signatures: electronic signature, AES and qualified electronic signature (QES). Digital signatures – AES and QES due to their technical differences from simple electronic signatures – are based on a technology standard called public key infrastructure that offers the highest security levels by creating tamper-evident digital certificates⁵.

Legal implications and evidential value

In the context of the EU legislation, both AES and QES involve identity verification, setting them apart from simple electronic signatures. A QES, considered legally identical to a wet signature in the EU, requires face-to-face or equivalent identity verification. However, the e-IDAS recognises the validity of electronic signatures as well and envisages that an electronic signature cannot be denied in legal proceedings solely on the grounds that it does not meet the requirements for a QES. Moreover, while the burden of proving the validity of the AES lies with the signer, a QES shifts the burden of proof and makes the challenging party liable to prove the invalidity of it. In light of these, despite not sharing the same legal enforceability as a QES, simple electronic signatures provide a level of protection under EU legislation, unlike in Türkiye.

In terms of Türkiye, it should be noted that contracts are generally valid if the parties reach an agreement either verbally, electronically or physically in writing, unless a specific form requirement is brought by the law. Nevertheless, especially for evidential purposes, written contracts are widely used in practice. The Turkish Code of Obligations (TCO) explicitly confirms that contracts that are executed by an SES have the same level of enforceability as those that bear handwritten signatures insofar as the usage of an SES is allowed⁶. This approach is also reflected in Art 205 para (2) of the Law on Civil Procedure (CPL). Accordingly, electronic data created with an SES is considered conclusive evidence⁷. It is worth noting that written or printed texts, deeds, drawings, plans, sketches, photographs, films, images or sound recordings, electronic data and similar information carriers that are capable of proving the facts in dispute are defined as ‘documents’ according to the CPL. As a side but related note, for the existence of a deed, the document must i) exist; ii) be in writing; iii) contain a declaration of intent; and iv) bear a signature⁸.

Article 202 of the CPL allows the hearing of witnesses, if prima facie evidence⁹ exists, in situations requiring proof by deed¹⁰. Bearing in mind that a document signed with electronic signatures cannot have the same legal effect as the one signed with wet ink, it may be considered as prima facie evidence ensuring a certain level of protection as the court may decide to hear the witnesses on the subject matter of the dispute. Therefore, although it does not have the same consequences as a wet signature, it is possible to benefit from the electronic signature as well, which can be accepted as prima facie evidence that may be capable of proving the subject matter with the help of witnesses, depending on the nature of the transaction.

In conclusion, the legal validity of electronic signatures varies between the EU and Türkiye, emphasising the importance of understanding and navigating the disparities in legislative frameworks for global transactions. The current system of the EU attributes a higher legal value to electronic signatures, in comparison with Türkiye which took the EU directive as a basis for the lawmaking process of the e-signature law. Until the time disparities between the systems of the EU and Türkiye are eliminated through an amendment to be made in the e-signature law, it is possible to state that electronic signatures will not be attributed the same level of enforceability as recognised in the e-IDAS. Yet still, the absence of an SES on a document signed with an electronic signature does not render it invalid. Rather, the determination lies on the expected level of enforceability based on the nature of the document. An SES is a specific qualified e-signature whose specifications are government-determined, and not all providers, such as DocuSign, fall under the category of authorised SES providers. Thus, the permissibility of using a SES or electronic signatures depends on a case-by-case assessment for evidential purposes.