Electronic Signatures and Their Evidential Value

Economic globalization is the increasing economic interdependence of national economies across the world through a rapid increase in cross-border movement of goods, services, technology and capital. As a result of the increased economic global interactions, international trade has grown. Simultaneously, the speed of life in every aspect such as communication, logistics and access to information has increased too. The speed of today’s life is both a cause and a result of economic globalization. To be more specific the speed of life in certain aspects increases the economic globalization and international trade. But also as a result of the increased economic globalization and international trade, the need of speed in both daily life and corporate life increases. So to speed up the transactions between global players almost everything is conducted through online systems, including the signing processes of contracts. In order to eliminate the “old world” procedures, parties mostly prefer to have the contracts signed via electronic signature programs such as DocuSign or Adobe Sign, which allow them to sign documents in a more user friendly way. However, at this point, the legal validity of these signatures during a conflict becomes an essential issue. This article aims to explain the legal validity of insecure electronic signatures as per Turkish Law.

As a general rule, unless a specific form requirement is brought by the law, contracts are generally valid if the parties reach an agreement either verbally, electronically or physically in writing. However, especially for evidential purposes, written contracts are advisable and widely used in practice.

As for signing requirements, the Turkish Code of Obligations explicitly confirms that contracts that are executed by secure electronic signatures (“SES”) will have the same level of enforceability as those that bear handwritten signatures. The companies which may act as electronic certificate service providers and provide SES are listed with the Information and Communication Technologies Authority. In other words, a SES (which is accepted by the law) is a specific qualified digital signature, the specifications of which are determined by the legislation.

In order for a platform to be used for valid signing of a contract, such platform should either be listed as one of the service providers as explained above or have co-operations with one of the listed service providers. The lack of this requirement would trigger a digital signature created on such platform to be unqualified as a SES as determined under the law. However, if the signatory has a validly obtained electronic signature in Turkey and the online platform (although not being listed) allows him/her to use such signature through the system, than such signature should be qualified as a SES. It is also important to note that even if signatures through an unlisted online platform cannot be qualified as a SES, they will for sure qualify as prima facie evidence in case of a dispute – that can be used to support the existence and validity of the contract.

In light of the above, if parties to a contract already have a SES qualified in Turkey, such can be used through any online platform that allows to do so. To be more precise, rather than being permissible as per Turkish law, the matter regarding these online platforms is about having the same level of enforceability as documents that bear wet ink signatures. Accordingly, although contracts may be signed between the parties by using online platforms, the safest practice would still be executing the contracts with handwritten signatures if there is no qualified SES. Even if both parties prefer to use an unqualified online platform, it is essential to note that certain contracts and/or amendments would in any case require wet signatures.

Contributing Advisors