Judges and electronic signatures definitely do not mix well

On April 20, 2023, the Versailles Court of Appeal issued a decision (RG No. 22/04814) by which it recognized the validity of the electronic signature of an account agreement concluded between the Caisse de Crédit Mutuel d'Erquy‑Pleneuf and a consumer, but on the basis of a totally astonishing motivation.

The account agreement showed a debit balance of around €10,000 and it was the consumer who appealed, claiming that he had never signed the agreement and that he had been the victim of identity theft.

In support of its claims, the bank produced a Docusign/protect&Sign proof file, which includes the standard statements of this type of document and clearly corresponds to an advanced signature, in which the authentication of the signatory is based on an email address and a telephone number transmitted on a declarative basis.

The Court, reversing the burden of proof, decided that it was up to the consumer to demonstrate the unreliability of the process whereas, since it was clearly an unqualified signature (document not presumed reliable), it was on the contrary up to the bank to demonstrate its reliability...

This is a very troubling decision, demonstrating once again the lack of understanding of the subject by both non‑specialist counsel and judges. Beyond this case, it does not send a good signal about how future disputes are likely to be handled by the courts.