Electronic Signature and Legal Validity

Legal systems have undergone transformation with digitalization. The traditional wet signature has given way to electronic signature technology. Electronic Signature Law (Law No. 5070) determines the legal framework in this area. The Law has ensured the legal validity of the electronic signature. Consequently, transactions have become faster and safer. The electronic signature is essentially an identity verification tool. In this article, the legal foundations of the electronic signature are examined. Its evidentiary value and areas of use are discussed in detail.

1. Legal Foundations and Types of Electronic Signature

The electronic signature is attached to a data message. It is data used for identity verification purposes. The Law has defined two basic types of electronic signatures.

A. Secure Electronic Signature (SES): This signature is created with a qualified electronic certificate. It is accepted as unique to the signatory. The creation of the signature is ensured by means under the signatory’s control. Therefore, it has legal validity equivalent to a wet signature.

B. Simple Electronic Signature: Names at the end of an email or digital approvals on a browser are within this scope. It does not carry the conditions of a secure electronic signature. However, these signatures also have evidentiary value. They are freely appreciated by the court.

C. Area of Use with Transition Words: The electronic signature is widely used in official institutions and commercial transactions. For example, the UYAP system operates with an electronic signature. It is also used in banking contracts.

2. Legal Validity and Status of the Electronic Signature Before the HMK

The legal validity of the electronic signature is secured by law. Its equivalence to a wet signature is particularly important in trial processes.

• Principle of Equivalence (HMK): The secure electronic signature created in accordance with the procedure is equal to a handwritten signature. The Code of Civil Procedure (HMK) has clarified this situation. Furthermore, it has been accepted as valid until proven otherwise.
• Claim of Forgery: The claim of forgery of the electronic signature can be raised. In this case, examination is carried out by the certificate service provider. Forgery is detected through technical examination.
• Mandatory Form Requirement: There are some transactions for which the Law requires a mandatory form. These transactions cannot be conducted in the electronic environment. For instance, land transfer procedures still require a wet signature.

3. 7 Frequently Asked Questions and Legal Answers

Problems encountered in practice regarding the electronic signature exist. Answering these questions provides legal awareness.

1. Does the Secure Electronic Signature Replace the Wet Signature? Yes, it does. Law No. 5070 and HMK provisions have clarified this situation. Documents signed with a secure e-signature constitute written evidence. Consequently, it is used in commercial contracts and non-notarized transactions.

2. Can Real Estate Sales Be Made with an Electronic Signature? No, they cannot. Official deeds must be prepared for real estate transfers. The provisions of the Title Registry Regulation are applied for title deed procedures. Official deeds are only signed in front of the Title Registry Directorate. However, some preparatory procedures in the Title and Cadastre Information System (TAKBIS) can be done with an e-signature.

3. What is the Legal Value of the Simple Electronic Signature? The simple e-signature is not considered conclusive evidence. The court evaluates these signatures as discretionary evidence. For example, email correspondence and text messages are within this scope. This data is used along with the judge’s conscientious conviction.

4. What is the Status of a Signature Whose Certificate Period Has Expired? The validity period of the electronic certificate may have expired. A signature affixed with an expired certificate is deemed invalid. The certificate must be valid on the date the signature was affixed. Therefore, certificate validity must be checked regularly.

5. Is a Foreign Electronic Signature Valid in Turkey? It may be valid within the scope of international agreements. The foreign certificate service provider must be recognized in Turkey. Additionally, the provisions of international conventions are taken into account. The eIDAS regulation in the European Union is important in this area.

6. Who Bears the Burden of Proof for a Document Signed with an E-Signature? The party submitting the document bears the burden of proof. However, the secure electronic signature is deemed valid until proven otherwise. As a result, the party claiming forgery must prove it technically.

7. How is an Electronic Signature Canceled or Suspended? It is canceled upon the user’s request or when a security risk arises. The certificate service provider is immediately notified in case of loss or theft. The suspension of the certificate is a temporary halt.

4. Creation of Secure Electronic Signature and Certificate Service Providers

The creation of the secure e-signature is provided by authorized institutions.

• Certificate Service Providers: These are organizations authorized by the Information and Communication Technologies Authority (BTK). These organizations produce qualified electronic certificates.
• Identity Verification: The applicant’s identity is verified before the certificate is issued. Face-to-face or secure remote identity verification can be performed. This guarantees the uniqueness of the signature.

5. Fundamental Differences Between Wet Signature and Electronic Signature

Legal equivalence exists between the two types of signatures. However, technical and practical differences are found.

• Physical Presence: The wet signature is a physical entity. The electronic signature is an encrypted data set.
• Validity Period: There is no statute of limitations for a wet signature. E-certificates have a specific validity period.
• Evidentiary Value: Both are considered conclusive evidence. However, the technical examination of an e-signature is faster.

An Indispensable Tool in Digitalizing Law

The electronic signature is a modern tool that facilitates legal transactions. Therefore, the legal validity of the secure electronic signature is equivalent to the wet signature. Exceptions such as title deed procedures are protected by law. The high evidentiary value is an important guarantee for commercial life. Consequently, the correct use of e-signature and the tracking of certificate validity are critically important.