Social Distancing and the Use of Electronic Signatures under Turkish Law – Lexology

As a precaution against the rapid spread of the global pandemic, many of the companies switched to remote working strategies and started to apply social distance rules to mitigate the effect of the Covid-19. With the increase in the number of people working remotely, companies and organizations will undoubtedly have to think about how to execute documents and contracts, along with the measures taken against the Covid-19. Even though economic life will slow down in this process, many routine contracts will be renewed, works and services will continue where they left off to adjust this new life, whenever possible. Providing flexibility and efficiency in cross-border transactions, electronic signatures (e-signatures) can eliminate many of these problems and provide more security than scanning and e-mailing wet signatures.

What are the Types of E-Signatures?

E-signature can be defined as a concept that includes methods based on people's biometric features (such as voice, eye retina scan, fingerprint scan); handwritten signature which has been scanned to be transmitted to the electronic environment, a signature made with a pen on the computer screen or a digital signature created by double key cryptography.

Are E- Signatures Valid Under Turkish Law?

E-signature is regulated under Electronic Signature Law No. 5070 (Law No. 5070). Unlike the European Union Regulation on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market No. 910/2014, Law No. 5070 accepts only secure electronic signature as the valid electronic signature and does not make a distinction between simple, qualified and advanced electronic signature.

As per the article 4 of the Law No. 5070, secure electronic signature is defined as an electronic signature (i) which is specifically designated to the signatory, (ii) which is only at the disposal of the signatory and created with the secure electronic signature creation tool, (iii) which provides the identification of the signatory based on the qualified electronic certificate and (iv) capable of indicating whether any alterations have been made to the document after the creation of the electronic signature. Accordingly, the electronic signature must be a secure electronic signature in order for it to create same legal effects as a handwritten signature. Meaning that documents signed using a secured e-signature has the same conclusive force as the handwritten signature thus qualify as a material evidence in legal proceedings.

Are There any Restrictions to Use E-Signature?

While Contracts, where the law does not require written form, can be easily established through electronic communication tools as per freedom of form principle; in cases where the law mandates a written form, the contracts to be made without complying this condition will be deemed invalid. Under article 5 of the Law No. 5070, certain contracts may not be signed electronically such as guarantee letters, real estate sales contracts and motor vehicles sales contracts. Further, Turkish Commercial Code (TCC) article 1526 sets forth additional restrictions. Accordingly; policies, bonds, check receipts, warrants and bills of exchange and transactions regarding to these cannot be issued with a secure e-signature.

Choosing the Type of E-Signature to be Used

In order to choose what type of e-signature to use, it is crucial to determine the most practical way while using the type which provides security measures that is capable to authenticate the signatory. The commonly used, secure and known form of electronic signature today is secure electronic signature (digital signature). Secure electronic signature weakens claims that the signatory has not read the document or has not signed by using double key cryptography technique and thus creates a bore reliable business relationship. E-signatures can be acquired from an electronic certificate provider authorized by Turkish Information and Communication Technologies Authority.

There is another type of an electronic signature called biometric signature which is mostly used when signing e-commerce home delivery service agreements on a tablet or computer. Biometric signature is an e- signature application in the form of data obtained by digitizing some of the personal characteristics of people such as voice, fingerprint, eye retina scan, movements, speed, acceleration, pencil strokes and lifts to the text to be signed. Although it is seen in practice that some companies and public administrations provide services by using biometric signatures, it does not have a conclusive force by itself unlike wet signature or a secure electronic signature under Turkish law. In order to provide this conclusive force, strict measures must be taken using biometric signature panels that can access private databases. With the use of these panels, personal data such as pressure, azimuth angle, height, velocity, acceleration, coordinates and signing time are also collected, as well as the personal data received to verify signatures from the person when signing that signature. Additionally, it will not be enough to collect this information, it must also be stored in encrypted form and it is necessary to develop a strict data protection policy and follow the operation of this policy in order to avoid any problems in case of a possible conflict due to the uncertainty in the legislation.

Is it Possible to E-Sign a Document with a Foreign Entity?

As per the article 14 of Law No. 5070, the legal results of electronic certificates (e-certificate) issued by an e-certificate provider established in a foreign country shall be determined by international agreements. Additionally, in case that an e-certificate issued by a foreign e-certificate provider shall be recognized as a qualified e-certificate provided that the admissibility of foreign e-certificate is recognized by a Turkish e-certificate provider. In this respect, it is possible to sign a document using e-signature with European Countries since the European Union E-Signature Directive No. 99/93 (Directive) and countries such as United Kingdom, Hong Kong and China, United States and Russian Federation which recognizes the admissibility of qualified e-certificates as long as the concerned Turkish e-certificate provider fulfils relevant requirements of such countries.

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Social Distancing and the Use of Electronic Signatures under Turkish Law - Lexology