THE TURKISH ELECTRONIC SIGNATURE LAW AND THE NOVELTIES IT BRINGS

Businessmen will be able to make trade contracts and sign them with e-signature by their computers, in their own offices without coming together the parties.

The Act on E-Signature which came into force on 23rd of July 2004 was prepared with the guidance of EU Directive and the practice of the member states such as Germany, France, Austria and Belgium. E-signature Regulation and Communiqué has been entered into force on 6th January 2005 by the way of publication in the Official Gazette.

The purpose of the Law is to facilitate the use of e-signatures by determining the principles concerning their legal and technical aspects. Similarly, the EU Directive aims to facilitate the use of e-signatures and to contribute to their legal recognition.

Both the Law and the EU Directive cover the legal nature of e-signatures, the activities of the CSPs (Certificate Service Provider) and the principles concerning the utilization of e-signatures. In addition, the Law also covers the conditions of the cancellation of qualified electronic certificates and the criminal and administrative sanctions envisaged for violation of the Law.

With digital signature law, digital signature became as legally binding as hand-written signature. In this aspect, private key needs to be protected from passing into the hands of somebody else, either. According to Law, signature creating data can be created only by the signature creating devices that will use this data. In other words, signature creating data will be stored in the signature creation devices instead of storing in a computer, in a diskette or in a CD. These devices never lets private key out of the device. A private key always live in the device, during his life, which makes digital signature system more secure. Smart cards and USB tokens are well known examples to these tools.

According to Law, authorized institutions (CSP) will make signature creation devices to produce public and private keys in the signature creation device. Then CSP will distribute signature creation devices to users with a secure method. CSP will create a digital certificate for each user. This will bind user’s identity to his/her public key. According to internationally accepted standard for digital certificate format, a digital certificate also includes fields such as validity dates, certificate number, purpose, signature algorithm name etc. According to business requirements, other custom information, like national identity number, might be included in the certificate, as an extension field. Digital certificate are similar to an identity card.

Both the Law and the EU Directive define the “e-certification service provider” as an individual or legal entity that issues certificates or provides other services related to electronic signature. Examples for a Turkish CSPs ; Elektronik Bilgi Güvenliği A.Ş. and TÜRKTRUST A.Ş.

Legalization of e-signature, forces continuing e-government projects to change their directions according to the Law. As a result of these changes, instead of currently used paper based communication method between institutions and persons, systems like electronic document management and flow control systems will be established. These changes will save tons of paper, time, work force and, of course, money.

The need of making valid and secure contracts in international trade necessitates e-signature utilization. This Law provides e-signature to substitute hand-written signature in the international field. However, e-signature can not be used in warranty contracts and real-estate transfers subject to official formation or special formalities according to law.

If CSPs (Certificate Service Providers) that are intermediaries to e-signature bring harm to the owner of e-signature indirectly by signature fraud due to their negligence of security, then they will be deemed responsible.

This Law added an article to the Turkish Code of Civil Procedure. According to the article, documents signed by e-signatory are equivalent to a trade bill and they are respected as an absolute proof unless they are disproved in the court.

In conclusion, the parties will be able to make and sign contracts and form documents without coming together and these contracts and documents will be equivalent to the documents signed with hand-written signature. This opportunity will save time and provide speed in the transactions for businessmen.