In this Circular, we shall freely follow on from Legal Circular No. 6/2016, in which we addressed the issue of electronic signatures in light of the new eIDAS Regulation (hereinafter referred to as the “eIDAS Regulation”). We shall further address the question of legal acts made by electronic means. Such legal acts may typically be, for example, the conclusion of a contract in the internet environment, placing an order by email, etc.

The provision of Section 561(1) of the Civil Code sets out relatively clearly that for the validity of a legal act made in written form, the signature of the acting person is required, with another legal regulation stipulating how, in the case of a legal act made by electronic means, a document may be electronically signed. This other legal regulation was until now Act No. 227/2000 Coll., on Electronic Signatures, as amended (hereinafter referred to as the “Act on Electronic Signatures”), which was, however, with effect from 19 September 2016, in connection with the eIDAS Regulation, replaced by new Act No. 297/2016 Coll., on Trust Services for Electronic Transactions (hereinafter referred to as the “Act on Trust Services”).

According to the Act on Electronic Signatures, an electronic signature was understood to mean “data in electronic form which are attached to or logically associated with a data message and which serve as a method for unambiguous verification of the identity of the signatory in relation to the data message”. The directly applicable eIDAS Regulation goes even further in this direction and defines an electronic signature even more loosely, understanding an electronic signature to mean “data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”. It therefore follows from all the above-mentioned regulations that, in addition to an advanced or qualified electronic signature (electronic signatures based on qualified certificates), they also distinguish a simple electronic signature. According to professional literature, this may also be an agreed or sent password attached to the text or the indication of a name and surname, for example, at the end of an email in conjunction with the email address or telephone number of the person.

Notwithstanding the cited statutory provision and professional literature, it is still problematic in judicial practice to convince judges of this, particularly judges of first-instance courts, who very much hold the somewhat outdated view that a simple electronic signature is not sufficient for compliance with the written form required by law, but an advanced electronic signature is necessary. However, it follows from the logic of the matter that this view contradicts the meaning and purpose of the legal regulation and brings unnecessary obstacles into the legal relations of all persons (including traders). Now the Regional Court in Ústí nad Labem, in its decision of 12 August 2016, ref. no. 14 Co 586/2016 – 25, ruled relatively unambiguously that “…The Civil Code, in its Section 561(1), associates legal effects with any electronic signature, not only with an advanced electronic signature, as the enforcement court believes…” In the case in question, the character of the electronic signature was examined in relation to the conclusion of an arbitration agreement; however, we consider that this conclusion is undoubtedly generally applicable to all similar cases.

In light of this decision, it should be possible, for example, to consider the indication of a code sent to the customer by SMS to the customer’s telephone number/by email to the customer’s email address as a simple electronic signature necessary for a valid written legal act. Although this is a very interesting decision which, in our opinion, is in accordance with the interests of traders’ business activities in the internet environment, it is necessary to take into account that this is a decision of a lower court and that in the Czech Republic, court decisions are binding only for the parties to the dispute.

Barbora Chvalinová

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advice

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as Legal Circular No. 9/2016 intended for members of this association.

This text was translated from Czech to English using an AI translator.