Legality of eSignatures in Malta

Background

With the swift advancement of technology, there is a growing need for modern methods to verify signatures on documents, leading to a surge of interest in the use of electronic signatures. These digital techniques offer quick and eco-friendly ways to sign documents, reducing paper usage and speeding up transactions.

When adopting eSignatures, whether in Malta or globally, selecting a service that adheres to Maltese legal standards, specifically the E-Commerce Act – updated in 2021 – and the EU Regulation 910/2014 is vital. These laws give electronic signatures the same legal validity as their handwritten counterparts. Still, it is worth noting that certain documents might necessitate a wet ink signature, and these legal requirements can differ from place to place. The prevailing laws detail the criteria needed to establish the legitimacy of an electronic signature. BoldSign offers security measures that comply with these legal and security norms.

Electronic signatures are widely acknowledged for their considerable advantages. However, adhering to the legal framework, ensuring security, and opting for a user-friendly service to incorporate them seamlessly within the Maltese framework is essential.

What constitutes an electronic signature

In Malta, electronic signatures are governed by specific regulations, which define an eSignature as a digital mark consisting of characters, letters, numbers, or symbols linked to an electronic document, and they are considered legally effective. For an electronic signature to validate most documents, it must be demonstrably associated with the signer and safeguarded against alterations or fraudulent activities. Additionally, the signer must explicitly indicate their willingness to be bound by the document’s content. Fulfilling these conditions grants electronic signatures the same legal significance as traditional handwritten signatures.

Forms of electronic signatures

An electronic signature encompasses a variety of digital forms attached to an electronic document or procedure. They are:

Using app login credentials to give permissions.
Signing with a stylus or finger on a touchscreen device.
Entering a name into an email as a form of signing off.
Confirming an Agreement on a web page with a click post-verification.
Adding a digitized image of a handwritten signature.
Employing a spoken command to serve as an oral consent.

Overview of the regulation of electronic signatures in Malta

Operations entailing the use of electronic signatures within Malta are regulated by:

Electronic Identification and Trust Services Regulation [eIDAS]¹.
E-Commerce Act²

As a rule, the regulation deems electronic signatures legal when completing transactions. Electronic signatures under the regulation are categorized into three categories³:

Standard Electronic Signature
Advanced Electronic Signature
Qualified Electronic Signature

A standard Electronic Signature is explained to be electronic data attached to or logically associated with an electronic document. It ensures the authenticity of the electronic document and confirms the identity of the signatory.

An advanced Electronic Signature is explained as an electronic signature meeting a set of requirements set out in Article 26⁴ of the eIDAS such as:

Uniquely linked to the signer.
Capable of identifying the signatories.
Developed using means that the signatory can maintain control.
Linked to the data it relates to so that any subsequent change to the data is detectable.

Uniquely linked to the signatory

An advanced electronic signature must be uniquely connected to the person using it. The signature must be uniquely made with methods only the signer can access, like a private key and confidential info, to verify their identity.

Use and incorporation remain in the signer’s sole control

The person using the advanced electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent signature forgery.

Identify the signatory

The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, a Personal Identification Number (PIN), an email address, or a company registration number.

Track down alterations made after signing

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer’s I.P. address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place.

A qualified Electronic Signature is an advanced electronic signature that is generated using a certified device for creating electronic signatures and it relies on an accredited certificate specific to electronic signatures. Article 32 sets out a validation set of standards to be met by the one for a qualified Electronic Signature⁵. These are:

A statutory compliant certificate at the time of signing.
A qualified trust service provider issued a valid certificate when signing.
Signature authentication data corresponds to the data provided to the relying party.
The unique data representing the signer in the certificate was correctly provided to the relying party.
The use of any pseudonym is relayed to the relying party if a pseudonym was used at the time of signing.
The electronic signature is of a qualified electronic signature creation device.
The integrity of the signed data/document has not been altered.
Meets validity standards of an advanced eSignature.

Summary analysis

Under the Maltese E-Commerce Act [as amended in 2021] and E.U. Regulation 910/2014

Type of Signature	Unique Features	Legal Validity
Standard Electronic Signature	No unique feature other than being data in electronic form.	Validity is dependent on the evidentiary weight.
Advanced Electronic Signature	Uniquely linked to the signers. Capable of identifying the signatories. Developed using means that the signatory can maintain his control. Linked to the data it relates to so that any subsequent change to the data is detectable.	Validity is dependent on evidentiary weight across jurisdictions.
Qualified Electronic Signature	Certificate compliant with laws provided at signing. The trust service provider issued a valid certificate at signing. Signature validation matches the data given to the recipient. The signatory's unique data is accurately given to the recipient. Any pseudonym used is disclosed to the recipient. Signature made with a qualified electronic signature device. Signed data integrity maintained. Meets all features of Advanced eSignature.	Deemed valid unless the contrary is proven. Bears the same validity standards as a handwritten signature. In Malta and across all jurisdictions within the E.U.

The scope and limitations of electronic signature transactions

The use of electronic signatures for concluding transactions is not uniformly recognised as legally valid. As a result, certain types of transactions and applications are appropriate for electronic signatures, while others are not. An examination of this issue is presented below, along with a concise table outlining the relevant transactions.

Documents that can be signed

Electronic signatures can be employed to affix signatures and provide countersignatures on an array of documents, such as:

Human Resources
Procurement
Non-disclosure agreements (assuming they are contracts, not formal deeds)
Software License Agreements
Insurance Industry
Educational Field, etc.

Cases where only qualified eSignatures and wet-ink signatures are authentic

Under Article 25 of the eIDAS⁶, Qualified electronic signatures are deemed to bear the same legal validity granted to wet-ink signatures. As such the following can only be signed in either handwritten signatures or qualified electronic signatures:

Contract for assignment of a patent application or patent⁷.
Patent license Agreement⁸.
Acceptance of Notice of revocation by patent owners⁹.
Application for re-establishment rights by patent owners¹⁰.
Assignment of registered designs¹¹.

Exempted transactions

Electronic signatures aren’t valid, and as such, certain documents are exempted from the use of electronic signatures. Such transactions are¹²:

Taxation and any such transactions.
Transactions in relation to information society services covered by any regulation relating to data protection Regulations.
Questions in relation to agreements or practices governed by competition law.
Notaries public.
The representation of a client before the courts by attorneys.
Gambling activities involving wagering a stake with monetary value in games of chance, {including lotteries and betting transactions}.
Contracts that create or transfer rights over immovable property other than leasing rights.
Contracts of suretyship are granted and on collateral security furnished by individuals acting for purposes outside their trade, business, or profession.
The creation, execution, amendment, and variation /revocation of:
- A will or any other testamentary instrument.
- A trust or a power of attorney.
Making an affidavit or a solemn declaration.
The practices or procedures of a court or tribunal.
Any law and transactions relating to the giving of evidence in criminal proceedings.
Transactions governed by family law.

Summary scope of limitations

Under the Electronic Identification and Trust Services Regulation (eIDAS)¹³, E-Commerce Act and all enabling laws

Permissible transactions		Exempted transactions
Any type of eSignature	Qualified electronic signature	Wills or any other testamentary instruments. Trust documents. Power of attorney and notaries public. Deeds. Transactions with courts/tribunals. Transactions in the execution of representative roles by attorneys. Contracts of suretyship. Conveyancing. Transactions on criminal proceedings relating to giving of evidence. Transactions under the competition law.
Human Resources Procurement Non-Disclosure Agreements (assuming they are contracts, not formal deeds) Software License Agreements Public Petitions Insurance Industry Educational field, etc.	Contract for Assignment of a patent application or patent. Patent license Contract. Acceptance of Notice of revocation by patent owners. Application for re-establishment rights by patent owners. Assignment of registered Designs.

To ensure the authenticity of an eSignature, it is advisable to follow these best practices in addition to complying with all applicable legal requirements:

Confirm the signer’s identity and, in business dealings, verify that the individual is duly authorized to act on behalf of the company in affixing their signature.
Secure explicit Agreement from the individual signing, which may be incorporated in the contract itself or in a separate accord, to signify their intention to use the specified electronic signature for the document in question.
Safeguard the document to prevent any modifications after the application of the signature.
Keep an exhaustive log of the signing procedure, recording each step the signer performs.

How does BoldSign help

The following elements of compliance available within BoldSign can be used to comply with Maltese eSignature laws:

Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This helps ensure that the document is only accessed by the intended signer and cannot be tampered with.
Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds a layer of security to the signing process.
Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This helps ensure that the signer is aware of the implications of signing electronically and has consented to do so.
Custom terms:Getting your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
QES compliance: BoldSign offers fully compliant qualified electronic signatures (QES) that are simple, secure, and legally binding across the EU. QES guarantees that your essential documents are protected with the highest level of e-signature security, giving you peace of mind in your digital transactions. Using BoldSign, you can confidently manage your important documents while ensuring compliance with EU regulations.

Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

However, Syncfusion, its officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.

Syncfusion makes no warranties of any kind, including but not limited to respect to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.

¹ Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC ² Electronic Commerce Act Cap 426. [Leġiżlazzjoni Malta (Legislation.Mt)] ³ Ibid Art. 2 as read with Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC – Art. 3 (10)-(12) ⁴ Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC – .art.3(11) and 26 – ⁵ Ibid Art. 3(12) & 32 ⁶ Regulation (Eu) No 910/2014 of the European Parliament and of the Council, S. 4, Art. 25 ⁷ Patent and Design Act Cap 417 S.31 [untitled (gov.mt)] ⁸ Ibid S.35 ⁹ Ibid S. 44(4) ¹⁰ Ibid 46 (1) & (2) ¹¹ Patent and Design Act Cap 417 S.81 (3) [untitled (gov.mt)] ¹² E-Commerce Act [as amended in 2021] Cap 426 of 2002 S. 4 schedule 5 ¹³ Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC

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