ABSTRACT
In our digitalized world, the identity verification technology e-signature which has entered our lives in line with the need to ensure the reliability of transactions performed over the internet and the national regulations in this field and the European Union regulations have been discussed in this article, the differences between the relevant regulations have been examined, the benefits expected from e-signature and the point where e-signature technology has reached today has been revealed/ explained.
In this article; in our digitalized world, the identity verification technology e-signature which has entered our lives in line with the need to ensure the reliability of transactions performed over the internet and the national regulations in this field and the European Union regulations have been discussed in this article, the differences between the relevant regulations have been examined, the benefits expected from e-signature and the point where e-signature technology has reached today has been revealed/ explained.
I. INTRODUCTION
Nowadays, the use of the internet has increased in many fields, especially in communication. While commercial and legal transactions have also been affected by this transformation, the transformation in these areas has revealed the need for certain technologies that will provide legal protection and reliability in terms of identity certification and predictability. In this context, firstly, digital signatures entered our lives and then e-signature technology took it’s place. Digital signature and e-signature regulations first came into force with the European Union regulations and in the following years, legal regulations were legislated in our country in light of these regulations. In our country, the relevant regulations have been updated and the Electronic Signature Law No. 5070 which regulates this area separately, has been put into effect with the emergence of e-signature technology.
II. ELECTRONIC SIGNATURE
A. Simple E-signatures and Confidential (Advanced) E-signatures
After the increase in internet usage and digital solutions gaining more importance day by day, the simple e-signature method has started to be applied in order to carry out commercial and legal transactions. A signature which is written on the computer screen with a pen that is not coded and within a certain numerical password, biometric signature, digital signature and a scanned autograph, transferring a signature to the electronic environment and storing a signature in this way and using it in the electronic environment can be defined as a simple e-signature1. Meanwhile providing a certain degree of legal reliability in transactions, the usage of simple e-signatures also causes other problems in addition to its inability to prevent the problems experienced in autographs in terms of proof. Confidential e-signatures on the other hand, stand out as the highest point of technology in the world, considering the aim of ensuring legal reliability in commercial and legal transactions, since it is allocated to a single person by nature and unequivocally reveals that the transaction was made by that person. As will be explained later, when the confidential e-signature is added to the document, the identity of the e-signature owner can be determined definitively.
Electronic Signature Law No. 5070 defines electronic signatures as “electronic data that is added to another electronic data or has a logical connection with electronic data and is used for authentication purposes”2. Based on this definition, both simple e-signatures and confidential e-signatures are combined in the definition of electronic signatures in our law. Confidential e-signatures are regulated in the 4th Article of the same regulation on the side of clearly revealing the features that make the difference between Confidential and Simple e-signatures. In this context, confidential e-signatures are defined as “electronic signature, which is exclusively dependent on the signatory, created with the secure electronic signature creation tool, which is only at the disposal of the signer, that enables the identification of the signer based on the qualified electronic certificate and enables the determination of whether any changes have been made to the signed electronic data afterwards”3.
Based on this definition, it can be understood that confidential e-signatures differ from simple e-signatures in terms of creating and providing an identification, only being dependent to the signatory, and detecting whether any changes have been made in the data.
Although the importance of the aforementioned features in terms of providing legal security in commercial and legal transactions carried out on the electronic environment is obvious, the 5th Article of the Electronic Signature Law puts down the fact that electronic signature technologies, which have been tried to be developed from past to present, are reliable and with e-signatures, the technology is quite close to the targeted level in terms of legal security by regulating that a reliable e-signature is no different from a handsigned signature in terms of many transactions. At this point, the Electronic Signature Law has excluded the “Legal transactions and bank letters of guarantee subject to an official form or a special ceremony by the law” from most of the guarantee contracts and regulated these documents as an exception to the confidential e-signature being treated as an autograph4.
In this direction, although it is understood that electronic signatures have become a crucial and valid form of proof in our country, considering the developing technology and needs, its function of providing legal security and increasing its importance in this direction and may be valid and applicable for all legal transactions with new regulations to be put into effect in the coming years.
B. Legislative Regulations in the E-Signature Field
As mentioned earlier, to provide legal credibility nationally and internationally, it has become necessary to establish legal regulations on the relevant subject in order for the electronic signature technology, which came to life as a result of commercial and legal transactions starting to be carried out in the electronic environment. In this direction, first of all, certain regulations have been put into effect within the scope of the European Union, and then relevant studies have been carried out and legal regulations have been put into effect in our country.
1. EU Regulations in the E-Signature Field
The need for legislative regulation, which emerged as a result of developments in the field of e-signatures, has been met with multiple regulations in the European Union. The first of these is the European Union Directive 1999/93/EC of the European Parliament and of the Council of December 13th, 1999 on a Community Framework for Electronic Signatures which regulated the establishment of a legal uniformity among the member states5. The European Union Directive on Electronic Commerce 2000/31/EC of the European Parliament and of the Council of June 8th, 2000, which has followed this regulation, includes issues related to electronic contracts and their legal consequences and has been regularized to ensure the free movement of information society services among member countries6.
On the December 13th, 1999 dated European Union Directive on a Community Framework for Electronic Signatures, the electronic signature was defined as “electronic data that is attached to or logically linked to another electronic data and serves as a method of authentication”7. The degree of security and reliability of electronic signatures has also been taken into account in the regulation of the directive, and the electronic signature has been hierarchically divided into three separate categories. These three categories are; general electronic signatures, advanced electronic signatures and qualified-advanced electronic signatures8.
In the relevant regulation, the definitions are prescribed as; Electronic Signature (simple electronic signature), advanced electronic signature and qualified-advanced electronic signature (in other words advanced electronic signature based on a qualified certificate and created through a secure signature creation tool).
In light of current technological and social developments, the European Union put the Electronic Identification and Trust Services Regulation eIDAS into effect, which is dated July 23rd 2014 and numbered 910/20149,10. This regulation has been conducted to replace the EU directive numbered 1999/93, and with its enforcement, the member states have started to work to align their legislative regulations in the direction of this directive. One of the most important reasons for the preparation of the eIDAS regulation was to adapt the legal infrastructure with electronic commerce developments which widen its usage and scope in the world day by day. However, eIDAS was not limited to this area, as well as electronic commerce it also created a legal provision for the digital transformation of public services and financial services for both traders and non-traders.
As intended, EU directives have set an example for most member states in terms of the regulations put into effect within the electronic signature field and these regulations have been prepared in the same legal direction.
The directives issued by European Union has affected many countries in terms of legal regulations in the field of electronic signatures and non-member states have also began to prepare their legal arrangements within the field.
2. National Regulations in the E-Signature Field
Although studies in electronic signature field in our country dates back earlier, it’s legal interpretation and validation were actualized with the preparation of the Electronic Signature Law No. 5070 dated January 23rd, 2004 and entered into force on July 24th, 200411.
While the Electronic Signature Law No. 5070 was being drafted, the European Union Directive No. 1999/93/EU dated December 13th, 1999 on a Community Framework for Electronic Signatures was taken into consideration and content wise, a regulation which is parallel to this directive was created. Unlike the EU directive, concepts such as Electronic Data and Electronic Contract are not included in the Electronic Signature Law No. 507012.
The second legislation in our country regarding e-signatures was issued on January 23rd, 2005, by taking the legal regulations of the European Union member states and other countries into account13.
Considering the current situation in Türkiye, it has been determined that there is research being carried out in the public sector, institutions are the main element for information purposes and services for citizens and corporate transactions are being adapted to the electronic environment. Based on the research, it appears that in our country, the studies on the adaptation to the electronic environment is still in the early stages14.
With the opening of the e-Government system in 2008, which hundreds of public institutions are integrated, many transactions have been transferred to the digital environment and the use of e-signatures has increased considerably.
C. The Necessity of E-Signatures
With the technological developments in the world, certain needs arise in parallel with these developments. With the transfer of commercial and legal transactions to the digital environment, the opportunity for using a hand signature as a form of proof in these transactions has disappeared, and at this point a new type of signature is required in terms of proof. Electronic signature technologies have been developed in response to this need arisen from the developing and changing world order.
Besides being proof, e-signatures offer; confidentiality by providing access control, as only certain people can access the signed document; integrity, since the signed document cannot be changed by the signed person or anyone else; irrefutability, since the document signed with an e-signature cannot be denied; identity determination, since the identity of the person signing the document can be determined definitively; and efficiency, since it provides convenience and speed to transactions and ensures that the transaction is carried out at the lowest possible cost.
All these features clearly demonstrate the necessity and importance of e-signature technologies.
III. CONCLUSION
In recent years in many countries, the need for electronic signature technologies has been met with legal regulations in this field. Although the e-signature was developed mainly as a response to the need of ensuring legal security in commercial and legal transactions, it has developed variously according to different needs in each country. Since the relevant directive issued by the European Union is a framework regulation for the member states, the states have created their legal regulations within the determined frame and through the needs of their own countries.
Being one of the countries that created regulations in line with the relevant EU directive, in certain areas Türkiye has taken the way of differentiation from the EU directive. Once again, various needs in our country is the reason for this differentiation. The e-Transformation Turkey project, which was implemented on the behalf of digitalization in our country, has considerably increased the usage of e-signatures in the following years. E-Government, which is the largest pillar of this project, has increased its area of usage over the years, and nowadays many transactions can be carried out in the digital environment. In parallel with the increase in the area of usage of e-Government, the number of people who carry out their transactions through this platform has increased every year.
The Electronic Identification and Trust Services Regulation dated July 23rd, 2014 and numbered 910/2014, which complied with the developments in the field of electronic commerce and digital transformation, is the most up to date regulation within the scope of the European Union and this directive has not found its counterpart in our country yet.
Since the beginning of the 2000s, the technology which has been developing at a great pace compared to the previous years is meeting with legal regulations both in the world and our country. In this context, the necessity of legislative regulations in the e-signature field in the direction of digital transformation, which has increased its speed especially after the Covid-19 pandemic emerged. For the relevant legislative regulations to be updated in our country, it is crucial to establish an e-signature regulation that will cover the developments that have taken place until today, in line with Electronic Identification and Trust Services Regulation dated July 23rd, 2014 and numbered 910/2014, in terms of the necessity of having a contemporary legislation that meets this purpose.
BIBLIOGRAPHY
EMİNE ÖZ, Elektronik İmza – Hukuki Boyutu, Yüksek Lisans Tezi, İstanbul 2006.
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FOOTNOTE
1 Veysi Seviğ, Elektronik İmza Sistemlerinde Güvence, World 2004, http://turmob.org.tr.basin/11-06-2004. htm., p. 1 (Date accessed, 05.06.2022).
2 Electronical Signature Law No. 5070 art. 3.
3 Electronical Signature Law No. 5070 art. 4.
4 Electronical Signature Law No. 5070 art. 5.
5 Mesut Orta, Elektronik İmza ve Uygulaması, First Edition, Seçkin Yayıncılık, Ankara 2005, p. 70 via Emine Öz, Elektronik İmza – Hukuki Boyutu, Yüksek Lisans Tezi, İstanbul 2006, p. 46.
6 İnci Demirel, Çeşitli Ülkelerde Uygulanan Elektronik Ticaret ve Elektronik İmza Yasaları Hakkında Not, Hazine ve Dış Ticaret Müsteşarlığı, Elektronik Ticaret Genel Koordinatörlüğü, http://bilisimsurasi.org.tr/dosyalar/7. doc (Access:10.09.2006), p.2 via Öz, p. 47.
7 Emrehan İnal, E-Ticaret Hukukundaki Gelişmeler ve İnternette Sözleşmelerin Kurulması, Vedat Yayıncılık, İstanbul 2005, p. 64 via Öz, p. 47.
8 İnci Biçkin, Elektronik İmza ve Elektronik İmza ile İlgili Yasal Düzenlemeler, TBB Journal, Issue 63, 2006: p. 116, http://tbbdergisi.barobirlik.org.tr/ m2006-63-210 (Date accessed, June 5th, 2022).
9 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2014.257.01.0073.01. ENG, (Date accessed, June 6th, 2022).
10 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.
11 M. Emre Civelek, Kağıtsız Ticarete Doğru Adım Adım: Elektronik İmza Yasası ve Dış Ticaret işlemleri https://www.emrecivelek.com/old/ digital_signature_law.html (Date accessed, June 6th, 2022).
12 Orta p.83, via Biçkin, TBB, p. 120.
13 Öz, p. 50.
14 E-İmza, E-İmza’nın Toplumsal Boyutu, http://www.e-imza.gen.tr/ templates/resimler/File/arastirmadosyalari/E-IMZANIN TOPLUMSAL BOYUTU.doc, p.9. (Date accessed, June 5th, 2022).
