2023-06-26 10:14:49
Imagine a world where you can sign important documents without having to print anything, pen or paper…. Well, it is now a reality in Morocco. And that’s not all ! Digital identity is also taken into account in this legal development. All these questions around electronic signature, digital identity and authentication were discussed in detail during the Digital banking forum held in Casablanca.
Although the use of the electronic signature is still not widespread and unknown in Morocco, there is a legal and regulatory framework that governs this process. Saad Belkasmi, doctor of business law and lawyer, gives detailed explanations on the subject. “When writing is required to guarantee the validity of a legal act, it is now possible to write it and store it in electronic form, in accordance with the provisions of the law”. This means, according to him, that electronic documents can now be considered equivalent to traditional paper documents, provided that certain conditions are met. This recognition was established by Articles 417-II and 417-2 of the Dahir forming the Code of Obligations and Contracts (DOC).
In addition, when a written note must be affixed by the hand of the person committing, this note can also be made in electronic form, provided that the necessary conditions are met to guarantee its authenticity and its uniqueness to this person. . In other words, it must be clearly demonstrated that the electronic signature can only be performed by the data subject and is therefore indisputably linked to his identity.
The probative force writing and electronic signature
In a context of digital transition and increasing use of information technologies, it becomes essential to establish the validity and effectiveness of electronic writing and signatures. In Morocco, the law now recognizes that writing in electronic form has the same probative force as writing on paper. This means that electronic documents are admissible as legal evidence, provided that the person who issued them is clearly identified and that appropriate measures are taken to guarantee the integrity of these documents. The signature plays a crucial role in the validation of a legal act, because it makes it possible to identify the person who affixes it and to express his consent to the obligations resulting from it. When the signature is affixed in the presence of a public officer empowered to certify, it confers authenticity on the act.
$However, in the case of an electronic signature, it is necessary to use a reliable identification process that guarantees its link with the act to which it relates. The limitations of Moroccan law 53-05 on the electronic exchange of legal data are important to take into account. Although this law encourages the use of information technology in legal transactions, there are certain acts that are not covered by its provisions. Those related to the application of the provisions of the Family Code, such as marriage and divorce certificates, cannot be entirely carried out online.
“These acts still require specific formalities which require human intervention and cannot be replaced by electronic procedures”, underlines the lawyer.
In addition, deeds under private signature relating to personal or real sureties, whether of a civil or commercial nature, are not covered by the law, with the exception of those established by a person for the needs of his profession. and acts drawn up by credit institutions and similar bodies.
In addition, article 78 of law number 43-20 specifies that the value of personal or real sureties, which are the subject of private deeds drawn up by credit institutions and similar bodies, is determined by regulatory means. .
These acts must use an advanced or qualified electronic signature, or an electronic seal, to guarantee their authenticity and reliability. Referring to the importance of trust services regulation to enhance digital security, Belkasmi says the services include the creation of electronic signatures, electronic seals, electronic time stamping and electronic registered delivery services. They ensure the authenticity, integrity and confidentiality of the corresponding information, thus enhancing trust in online transactions. “Complying with relevant regulations is crucial to reaping the benefits of digital security,” warns the lawyer.
Obligations of the holder of the electronic certificate
Another important point raised by the speaker: as soon as the data linked to the creation of a qualified electronic signature or a qualified electronic seal is created, their holder is solely responsible for the confidentiality and integrity of this data when they are found in its qualified device for creating the signature or the stamp. Any use of this data is presumed to be the work of the holder, unless proven otherwise. He further emphasizes that the legal effect and admissibility of an electronic seal, whether simple or advanced, as evidence in court cannot be dismissed solely because it is in electronic form or because it does not does not meet the requirements of a qualified electronic seal. Such a stamp benefits from a presumption of data integrity and accuracy of the origin of the data on which the stamp is affixed.
Difference between simple, advanced, or qualified electronic signature
Simple eSignature is designed for low risk scenarios, Advanced eSignature for moderate risk with high volume requests, while Qualified eSignature is a robust signature format suitable for large financial transactions such as commercial contracts , sales contracts and mortgage documents.
Kenza Aziouzi / ECO Inspirations
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