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Following the issuance of the administrative interpretation on December 2, 2022, which recognized internationally common algorithms and cybersecurity technical standards as qualified electronic signatures under the Electronic Signature Act (“ESA”) (see LEE & LI Bulletin – February 2023 for more details), on June 27, 2023, the Ministry of Digital Affairs (“MODA”) announced the draft amendments to the ESA (“Draft Amendment”) to solicit public comments. If the Legislative Yuan passes the Draft Amendment in the future, it will be the first amendment to the ESA since the latter was enacted and implemented in 2002, which will significantly impact Taiwan’s electronic signature-related laws and regulations. The main points of the Draft Amendment are as follows:
1.Specifically stipulating that electronic documents and signatures are functionally equivalent to printed documents and physical signatures. If a hard copy or physical signature has legal effect, then its electronic counterpart should have the same effect (Article 4 of the Draft Amendment).
2.Considering that, in practice, the use of documents or signatures is not limited to juristic acts with counterparties, the prerequisite of obtaining consent from the counterparty to use electronic documents or signatures is removed. However, when using electronic documents or signatures to conduct juristic acts with counterparties, to promote digital inclusion and to address the needs of disadvantaged groups, the counterparties should be given an opportunity to refuse or be given alternative options in advance (Article 5 of the Draft Amendment).
3.Specifically stipulating that digital signatures are one type of electronic signature under the ESA, making the relationship between digital signatures and electronic signatures clear. Moreover, the Draft Amendment gives digital signatures the effect of “being presumed to be personally signed by the signatory.” In the case of disputes over a digital signature’s authenticity or whether the signatory signed it, the party claiming that the signatory did not sign the signature must submit evidence to overturn such presumption, which is different from electronic signatures where the party claiming that the signature is genuine and signed by the signatory has to bear the burden of proof (Subparagraph 3, Article 2 and Article 6 of the Draft Amendment).
4.Deleting the provisions authorizing administrative authorities to preclude the ESA’s application by making an announcement. In the future, the application of the ESA can be precluded only by law. 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 17 of the Draft Amendment).
5.Considering Taiwan’s unique situation on the international stage and that Taiwan’s external exchanges and cooperation are not limited to signing bilateral or multilateral agreements with other countries, in addition to “international reciprocity and equivalent security conditions,” the Draft Amendment adds “technical interoperability and cooperation” as another consideration principle for the MODA to approve foreign certification authorities, hoping to promote mutual recognition of digital signatures between Taiwan and other countries (Article 16 of the Draft Amendment).
