Electronic Signature Practices Under Turkish Law
With the technology developing gradually, it is becoming of great importance to be able to sign various documents and agreements electronically, and as a result of the efforts to harmonize Turkish Law with the European Union (EU) acquis, an Electronic Signature («e-Signature») system was established with the Electronic Signature Law No. 5070 for document processing.
Thanks to the e-signature application, which is frequently preferred by both private law persons and public institutions, the identity of the document holder can be verified electronically, the integrity of the documents can be preserved and stored securely, and commercial transactions between the parties can be carried out fast In this context, assessment of e-Signature, which facilitates electronic communication and electronic commerce, under Turkish Law is detailed below.
I. DEFINITION OF ELECTRONIC SIGNATURE
With the Electronic Signature Law No. 5070 («ESL” or “Law») published in the Official Gazette dated January 23, 2004, and numbered 25355, the Turkish lawmaker has classified e-Signature as electronic and secure e-Signature and defined both types separately. In this respect, while e-Signature in Article 3/1-b of ESL is defined as “Data in electronic form that are attached to other electronic data or linked logically to that electronic data and used for authentication” secure e-Signature in Article 4/1-a of the ESL is described as “a signature that is exclusively assigned to the Signature Owner, is generated with the Secure Electronic Signature Creation Device which is kept under the sole control of the signature owner, enables the identification of the Signature Owner based on the Qualified Electronic Certificate and enables detection as to whether signed electronic data has or has not been altered or not after the signature being applied”.
II. DISTINCTION BETWEEN ELECTRONIC SIGNATURE, SECURE ELECTRONIC SIGNATURE AND LEGAL CONSEQUENCES OF SECURE ELECTRONIC SIGNATURE
According to the Law, the concepts of e-Signature and secure e-Signature have been granted different meanings and legal consequences, there are significant differences between the two types of signatures. The first difference is based on Article 14/2 of the Turkish Code of Obligations No. 6098 («TCO») and Article 5 of the ESL. Within the scope of the relevant articles of law, the written form requirement shall be fulfilled by using a secure e-Signature in agreements that are subject to the written form requirement of the law, and this signature shall have the same legal consequences as a wet-ink signature.
However, it is significant to note that the lawmaker has not ambiguated the limits of the written form requirement provided by the secure e-Signature and has imposed certain limits on the aforementioned agreements. In Particular, the ESL emphasizes that a secure e-Signature shall not apply to legal proceedings subject to a special procedure or an official form under laws and warranty contracts.
The most common examples of this are; policies, bills, bonds, checks, warehouse receipts, warrants, and bills similar to bills of exchange, which are explicitly stipulated in Article 1526 of the Turkish Commercial Code («Commercial Code»); marriage contracts, which are explicitly subject to a special ceremony and handwritten wills regulated in Article 538 according to the Turkish Civil Code No. 4721 («Civil Code») and bailment contracts stipulated in Article 583 of the TCO.
In addition, another issue that distinguishes the secure e-Signature from the e-Signature arises in terms of the evidence law. Article 205 of the Code of Civil Procedure No. 6100 («CCP») stipulates that electronic data duly created with a secure e-Signature shall have the consequence of a promissory note. In other words, the fact that a document is signed with a secure e-Signature, which has the same legal consequences as a handwritten wet-ink signature, shall be especially significant in cases where the obligation of proof by deed is required, and such documents shall remain proof positive until proven otherwise.
III. DIFFERENCES BETWEEN DIGITAL SIGNATURE AND ELECTRONIC SIGNATURE
There is another significant point in the distinction between digital signature and secure e-Signature. It needs to be emphasized that digital signatures, which can be easily obtained through various applications, do not have any legal basis under Turkish Legislation and cannot provide the legal consequences provided by secure e-Signature. Considering that secure e-Signature is based on a Qualified Electronic Certificate and that Electronic Certificate Service Providers are subject to supervision in the scope of the Law, it is not possible to impose the same consequences on digital signatures as wet-ink signatures. As a result of this, the conclusive evidentiary qualification of a secure e-signature does not apply to digital signatures, and such digital signatures can only be accepted as prima facie evidence in terms of the evidence law.
IV. OBTAINING ELECTRONIC SIGNATURES
The relevant Law stipulates that a secure e-Signature shall only be provided with a Qualified Electronic Certificate. Within this framework, to obtain an e-Signature based on a Qualified Electronic Certificate, it shall be sufficient to submit the necessary documents online to the Electronic Certificate Service Providers audited by The Information and Communication Technologies Authority (“ICTA”). For electronic signatures issued by an electronic certificate service provider established in a foreign country, provided that these certificates are accepted by an Electronic Certificate Service Provider established in Turkey.
Moreover, various obligations have been imposed on Electronic Certificate service providers within the framework of the Law to ensure the security of e-Signature. In particular, it is also notable that the penal provisions of the Law provide for imprisonment, judicial and administrative fines in case of breach of these obligations.
The e-signature practice, which has gained a legal basis with the EIK under Turkish Law, has emerged as a significant facilitator of e-commerce between businesses, which constitutes a large part of the trade volume in the world. Also, ICTA, authorized under the same law, still regulates the legal and technical aspects of e-Signature and the procedures and principles regarding its implementation by enacting various regulations and communiqués on the subject.