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Executive Yuan Passed the Draft Amendment to the Electronic Signatures Act
Executive Yuan Passed the Draft Amendment to the Electronic Signatures Act
To establish a legal environment conducive to the development of electronic signatures, on February 29, 2024, the Executive Yuan passed the draft amendment (“Draft Amendment”) to the Electronic Signatures Act (“ESA”). The Draft Amendment will be submitted to the Legislative Yuan for further review. If the Legislative Yuan passes the Draft Amendment, it will be the first amendment to the ESA since the latter was enacted and implemented in 2002, significantly impacting Taiwan’s electronic signature-related laws and regulations. The key points of the Draft Amendment are as follows:
1. Considering the particularity of judicial procedures, the Draft Amendment excludes its application to judicial procedures, unless otherwise provided by law (Paragraph 2, Article 1 of the Draft Amendment).
2. To ensure electronic documents and signatures have the same legal effect as printed documents and handwritten signatures, the Draft Amendment stipulates that electronic documents and signatures would not be invalid solely because they are in electronic form (Article 4 of the Draft Amendment).
3. To encourage the widespread use of electronic documents and signatures, the Draft Amendment removes the prerequisite of obtaining consent from the counterparty to use electronic documents/signatures. However, where electronic documents or signatures are used for juristic acts with counterparties, the counterparties shall be given the opportunity to object in advance and be informed that, if they do not object, they would be deemed to have consented to the use of electronic form (Paragraph 4, Article 5 of the Draft Amendment).
4. To make the relationship between digital signatures and electronic signatures more clear and to distinguish digital signatures from other types of electronic signatures, the Draft Amendment specifically stipulates that digital signatures are one type of electronic signature with a certificate issued by a certification authority approved by the Ministry of Digital Affairs (“MODA”). Moreover, given that the security and credibility of digital signatures are much higher than other types of electronic signatures, the Draft Amendment gives digital signatures the effect of “being presumed to be personally signed or sealed by the signatory” (Subparagraph 3, Article 2 and Article 6 of the Draft Amendment).
5. The Draft Amendment deletes those provisions allowing administrative authorities to make public announcements to preclude the ESA’s application. In the future, the application of the ESA can only be precluded by laws or regulations specifically and expressly authorized by laws. The announcements made by administrative authorities to preclude the ESA’s application before the Draft Amendment takes effect will expire three years after the implementation of the Draft Amendment (Articles 11 and 19 of the Draft Amendment).
6. Considering that Taiwan has a unique international status and Taiwan’s external exchanges and cooperation are not limited to signing bilateral or multilateral agreements with other countries, under the condition of equivalent security requirements, in addition to “international reciprocity,” the Draft Amendment adds “technical interoperability and cooperation” as another criterion for the MODA to consider when approving foreign certification authorities (Article 15 of the Draft Amendment).
According to the MODA’s press release, in the future, the MODA intends to require online advertising platforms to verify advertisers’ digital signatures before publishing investment or election advertisements. On the one hand, this will facilitate online advertising platforms to conduct KYC (Know Your Customer) and block the sources of dummy accounts; on the other hand, it will also allow online advertising platforms to swiftly take down online scam advertisements posted by the same advertiser through the cross-platform joint defense mechanism.