Do you want to sign a digital document but you don’t know how to do it or which format to choose? Through our guide you will be able to know the legal value of electronic signatures and find out how to digitally sign a document.
What is the digital signature?
The digital signature is the tool that allows you to sign an IT document with the same effects as a traditional signature. It is, therefore, the electronic equivalent of the paper signature, or “handwritten”. The digital signature has a high level of security which guarantees the authenticity of the signature and the ownership of the person who signs.
The legislation on digital signature is contained in the digital administration code (CAD), the set of rules on electronic documents and electronic signatures. The CAD establishes the legal validity of the digital signature which can be used as a tool to regulate relations with the public administration and relations between individuals. This discipline has been modified over time, based on the European Union Regulation on digital identity (eiders).
Type of electronic signature
In Europe, there are two main categories of signatures: simple and advanced electronic signatures. A digital signature is a particular type of advanced electronic signature.
Simple electronic signature
The simple, or “weak” electronic signature is the least secure electronic signature and the one with less legal value. This signature, in fact, does not have the technical characteristics necessary to guarantee its authenticity and safety. In particular, it does not have the certificates and security keys of advanced electronic signatures. For example, printing a PDF file, signing it by hand, and then scanning it is a simple electronic signature.
This signature does not have the same value as paper one and does not give the document the value of private writing. This means that the value of the simple electronic signature can be freely assessed by a judge, from time to time, in relation to the specific case. In particular, it is possible to sign a contract with a simple electronic signature, but the judge may not recognize its legal validity.
The only electronic signature that always gives legal value to the electronic document is the advanced electronic signature. However, even a weakly signed contract may still be valid. For example, when along with the signature there are other elements that reliably identify the parties and their will, such as the presence of witnesses or an e-mail exchange to which only the parties have access.
Advanced electronic signature
The advanced, or “strong” electronic signature meets the legal requirements to identify the signatory with certainty. This is an IT subscription that guarantees a high level of security and control of the owner. In particular, this signature has the appropriate technical standards to uniquely trace the signature back to the owner. For example, the graph metric signature that is affixed to special tablets, capable of saving the signer’s biometric data, is a type of advanced electronic signature.
This signature is recognized by the law like the handwritten signature and has the same probative effect as private writing (art. 2702 cc). This means that it is reliable to recognize the authorship of a document with certainty. This signature can be denied by the owner only if the latter proves in court that it was not he who affixed it to the document.
The advanced electronic signature is divided into two further types: the qualified signature and the digital signature. Both have the same value and similar technology. The difference is that the qualified signature (e.g. the health care) is based on a qualified technological certificate for electronic signatures, while the digital signature has both the certificate and a cryptographic key system. By law, at least one of these two subscriptions is required to digitally sign a real estate transaction contract.
How to digitally sign a document online
To digitally sign a document in a valid way, the following practical guidelines should be taken into consideration:
- If the law requires the form of a public deed or private deed (e.g. real estate sale) it is always necessary to use a traditional signature or a digital signature
- If the law requires the written form under penalty of nullity (egg lease) it is recommended to use a traditional signature, an advanced electronic signature. When a weak electronic signature is used, the validity of the document is freely assessable by the judge and could still be guaranteed in the presence of elements that identify the parties and their will in a certain way (e.g. witnesses or correspondence via e-mail)
- If the written form is not required (e.g. confidentiality agreement or NDA) the weak electronic signature can be freely used as the signature constitutes an additional element compared to the verbal agreement which in this case is sufficient
For example, for a real estate sale, the presence of a notary is required and the identity of the person who signs the deed must be guaranteed with a traditional signature or a fully equivalent digital signature. If two partner companies that collaborate frequently enter into a new simple commercial agreement, however, it is also possible to use a weak electronic signature as the written form is not mandatory and the risk that the legal validity is not recognized is low.
How to make a digital signature?
The digital signature is affixed to a computer document with a particular device (smart card or USB pen), using software approved by a certification authority accredited by the European Union. Through the software, the file to be digitally signed and the available certificate is selected, the signature device is inserted into a reader and the relative PIN, the type of cryptographic envelope is chosen (egg. Pads, Cads, Ads), in relation to the ‘file extension (eg. PDF, XML), and click on the “Signature” button.
How to make a weak or simple electronic signature?
A document signed with a simple or weak signature does not give the same guarantees as an advanced signature, but with some precautions, it is possible to increase the level of security.
First of all, the document must be saved in a normal PDF format and will then be initialed on all pages and in full at the end of the document. To sign, there is no difference if you print the document, sign it and scan it or if you use software to sign the electronic document (such as Adobe Acrobat or Adobe Reader or the Preview App on Mac). In both cases, it will not be a true advanced electronic signature.
How to send the digitally signed document?
Regardless of the method by which the contract is signed, it is important to ensure that the other party receives the document.
The recommended tool for this purpose – whether you have used an advanced electronic signature or if you have chosen the weak signature – is always the PEC mailbox. This e-mail address allows you to be sure of receipt of the document, being the equivalent of a registered letter with acknowledgment of receipt. The PEC alone, however, does not guarantee the identity of the counterpart but adds an additional level of security. Furthermore, in the case of a company, the PEC address must be registered in the chamber of commerce and kept up to date, allowing you to find it and can therefore be found easily.
If the counterparty does not have a PEC account, it is also possible to use an ordinary mail address. In these cases, we recommend that you make sure that the other party’s e-mail address is correct and used regularly. Furthermore, it is always preferable to request a reply confirming receipt of the final document and to keep the correspondence in writing, in order to have additional evidence of ongoing negotiations.