Digital signatures: legal basis and technical possibilities

Introduction: The importance of digital signatures in the modern business world

Digital signatures have gained enormously in importance in recent years. They enable documents to be signed electronically quickly, securely and without media discontinuity. This leads to a considerable increase in efficiency in business processes and offers both companies and private individuals a high level of legal certainty. In Germany, the legal and technical framework conditions for the use of digital signatures are clearly defined by the eIDAS Regulation. This European regulation, which has been in force since July 2016, distinguishes between simple, advanced and qualified electronic signatures. In particular, the qualified electronic signature (QES) has the highest probative value and is legally equivalent to a handwritten signature. However, a digital signature is not always required or legally permissible. It is always important to check whether a signature is required at all for the document in question and which form of electronic signature can be used if necessary. This blog post highlights the most important aspects of digital signatures in Germany, from the legal basis to the technical possibilities and areas of application.

Legal recognition of digital signatures in Germany

The legal basis for electronic signatures in Germany and the European Union is the eIDAS Regulation. This regulation distinguishes between three types of electronic signatures: the simple electronic signature, the advanced electronic signature and the qualified electronic signature. Only the qualified electronic signature (QES) offers the highest probative value and is legally equivalent to a handwritten signature. The QES must be created by a certified trust service provider that is recognized in the EU. To be considered a qualified electronic signature, it must be clearly assigned to the signatory, enable the signatory to be identified and be created using means that are under the sole control of the signatory. It must also be ensured that any subsequent changes to the signed document can be detected. The eIDAS Regulation thus creates a uniform legal framework for the recognition and use of electronic signatures within the European Union. The clear definition of the requirements for qualified electronic signatures creates legal certainty for companies and private individuals who wish to use digital signatures.

Technical implementation and providers of qualified electronic signatures

A digital certificate issued by a certified trust service provider is required to create a qualified electronic signature. This certificate confirms the identity of the signatory. The signature itself is generated with a private key that is only known to the signatory and can be verified by anyone using the public key contained in the certificate. In Germany, various trust service providers, such as the Federal Chamber of Notaries or companies such as D-Trust, Deutsche Telekom AG and others, offer qualified electronic signatures. To create a QES, users usually need special software or an online portal from the provider. The signature creation process includes authentication of the signatory, verification of identity using official documents and the actual signing of the document with the private key. The technical implementation of the QES is based on cryptographic processes that guarantee the integrity and authenticity of the signature. The use of an asymmetric encryption method ensures that the signature could only be created by the signatory and that subsequent changes to the document can be detected.

Areas of application and limits of digital signatures

In Germany, digital signatures can be used for a variety of documents and contracts. These include employment contracts, purchase agreements, rental agreements and many others. However, there are exceptions where the written form requires a handwritten signature, such as in the case of notarial deeds, property purchase agreements or inheritance contracts. The digital signature cannot be used for these documents. A handwritten signature is also required by law when terminating employment contracts or issuing employment references. It is therefore important to always check whether a digital signature is permitted for the document in question or whether a handwritten signature is required. In addition to the statutory formal requirements, it is also important to note that not every document must necessarily be signed. It is often more a question of the probative value of the correctness of a declaration of intent. In such cases, a digital signature, even if it is not legally required, can still contribute to security and traceability. Companies should therefore carefully consider for which processes and documents the use of digital signatures makes sense and is efficient.

Conclusion: Digital signatures as a key technology for digitalization

The use of digital signatures in Germany offers considerable advantages in terms of efficiency and security. The eIDAS Regulation and the availability of certified trust service providers clearly define the legal basis for the recognition and use of digital signatures. The qualified electronic signature (QES) in particular enables companies and private individuals to digitally sign documents in a legally secure manner, thereby speeding up and simplifying processes. Nevertheless, it is crucial to understand the specific requirements and limitations of the different types of electronic signatures and to always check whether a digital signature is permissible and useful for the document in question. With the right use of digital signatures, companies can increase their competitiveness, reduce costs and increase customer satisfaction. Digital signatures are therefore not just an alternative to handwritten signatures, but a key technology for the successful digitalization of business processes. It can be assumed that the importance and spread of digital signatures will continue to increase in the coming years as more and more companies recognize and use the advantages of this technology.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.