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The Electronic Signatures Act Amended
The Electronic Signatures Act Amended
To establish a legal environment conducive to the development of electronic signatures, on April 30, 2024, the Legislative Yuan completed the Third Reading of the amendments (“Amendments”) to the Electronic Signatures Act (“ESA”). It was be the first amendments 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 Amendments are as follows:
1. Considering the particularity of judicial procedures, the Amendments stipulate that the Judicial Yuan or the Ministry of Justice may exclude the ESA’s application to judicial procedures by making announcements.
2. Since electronic documents and signatures are functionally equivalent to printed documents and handwritten signatures, if a hard copy or physical signature has legal effect, then its electronic counterpart should have the same effect. Hence, the Amendments specifically stipulate that electronic documents and signatures would not be invalid solely because they are in electronic form.
3. To encourage the widespread use of electronic documents and signatures, the Amendments remove 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 a reasonable period and channel 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. The counterparties may cease the use of electronic documents and signatures at any time; however, the validity of juristic acts previously performed in electronic form would not be affected.
4. Since there were disputes about whether internationally common electronic signature platforms meet the requirements for “electronic signature” under the ESA, the Amendments specifically stipulate that the Ministry of Digital Affairs (“MODA”) may issue rulings to illustrate what types of electronic signature technologies qualify and review such rulings on a rolling basis. The Amendments further require the MODA to (i) regularly collect information on the practical application of electronic signatures in Taiwan; (ii) conduct surveys or studies on the relevant international regulatory trends and market demands; and (iii) publish the results of the aforesaid surveys and studies on an annual basis.
5. To make the relationship between digital signatures and electronic signatures more clear and to distinguish digital signatures from other types of electronic signatures, the Amendments specifically stipulate that digital signatures are one type of electronic signature with a certificate issued by a certification authority approved by the MODA. Moreover, given that the security and credibility of digital signatures are much higher than other types of electronic signatures, the Amendments give digital signatures the effect of “being presumed to be personally signed or sealed by the signatory.”
6. The Amendments delete 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 law. Administrative authorities’ announcements to preclude the ESA’s application before the Amendments take effect will expire one year after the implementation of the Amendments; nonetheless, the foregoing one-year transition period may be extended up to three years with the MODA’s approval.
7. 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 Amendments add “technical interoperability and cooperation” as another criterion for the MODA to consider when approving foreign certification authorities.
Besides amending the ESA, on April 16, 2024, the Ministry of Economic Affairs announced a new business item of “I301060 Online Advertising Platform Business” under the MODA’s supervision. In the future, the MODA intends to require online advertising platforms to verify advertisers’ identities through electronic signatures or other technologies with similar security guarantees to prevent investment scams and dummy accounts.
Should you have any questions about the Amendments, please do not hesitate to contact any member of our Digital, TMT, and Data Privacy Practice Group.