Developments in case law on electronic signatures

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In 2022, the number of decisions rendered at the level of the Courts of Appeal on electronically signed documents increased significantly.

Here are the most significant elements:

  • These are mainly B to C situations (consumer credit) or employment contracts
  • to date, to our knowledge, no dispute has involved the use of judicial expertise
  • the financial stakes remain low (from a few thousand euros to a few tens of thousand euros, with a peak around 10 thousand euros
  • judges are beginning to develop a better understanding of the subject and are mostly recognising the validity of the signature, based on more or less developed considerations: production of a proof file presenting a link with the signed act; production of certifications from service providers; more rarely, recognition of the effectiveness of the proof agreement
  • Quite a number of decisions support this recognition on the existence of elements extrinsic to the signature (production of identity documents of the signatory, supporting documents, proof of payment of funds, etc.)
  • Unfortunately, we can still see confusion between the device used (most of the time a simple or advanced signature) and the qualified signature, presumed reliable under French law.

The case law assessment for 2022 is therefore generally positive for the recognition of electronic signatures by the Courts of Appeal. But this trend must be tempered: since the financial stakes are low, there has been no recourse to expert advice, and the level of analysis carried out by the magistrates remains very superficial.

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Under French law, the definition of an electronic signature (Art. 1367 Al.2 Civil Code) implies a "link" between the act and the signature identifying its author. This notion of link is also found in the definition of the advanced signature in the European eIDAS Regulation (Art. 26) which states that the advanced signature must be "unequivocally linked to the signatory". But the meaning of this link is not obvious. We believe that it can be understood according to three approaches: a conceptual approach that projects onto the electronic signature a characteristic of the handwritten signature; a technical approach defining it via the electronic signature technology; and finally an opportunistic approach linked to the development of the on-the-fly certificate and the notion of evidence file, widely adopted by French judges.
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