Elektroniska underskrifter i en digital agenda

Sammanfattning: The digital development in society and the new eIDAS regulation which is replacing the current eSignature directive and the Swedish law on electronic signatures through which the directive is implemented, raises the interest for electronic signatures and the possibilities these provide. In this context this essay aims to analyse the functions of electronic signatures and which impact the new regulation will have on the Swedish legal system. Furthermore, the legal effect of electronic signatures will be examined and to which extent an electronic signature can fulfill the typical functions of physical signatures. Electronic communication and the possibility of concluding contracts electronically are essential conditions for electronic signatures. Therefore these matters and some related contractual problems will be touched upon. Finally, I will discuss effects of electronical signatures from the perspective of law and economics. The conclusions are the following: Electronic signatures are based on assymetric encryption in the Public Key Infrastructure system (PKI). As regards legal effect, the EIDAS regulation mainly prescribes mutual recognition of qualified electronic signatures under certain provisions, and, further, that a qualified electronic signature may not be denied admissibility as evidence in legal proceedings under certain circumstances. It is also stipulated that national law may not impose higher requirements on electronic signatures than that they should be qualified. As is the case with the current legislation and EU directive, the regulation does not affect national or union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to form. Since Swedish law does not contain formal requirements regarding conclusion of contract to any larger extent, and due to the Swedish principle of free sifting of evidence, the impact of the regulation from a Swedish perspective will be insignificant in this respect. However, the regulation also introduces new rules on mutual recognition of electronic identification and, in addition to electronic signatures, also other trusted services. Further, the legal position has been strengthened due to the direct effect of the regulation, but has also been clarified compared to the eSignature directive, increasing the legal certainty. Within contract law, electronic signatures may be applied provided that no formal requirement, such as a requirement of hand-written signature, exist. In such case, the general position is that the legislation in question must explicitly allow the use of electronic signatures in order for such to be valid as signatures. Electronic signatures can fulfill the typical functions of the traditional signatures, such as the function of showing will, a warning function, identification function, authenticity function and function as evidence. The use of electronic communication may sometimes give rise to contract law related problems which can be solved through different approaches which is essential since it important not to slow down the digital development of society. From a law end economics point of view, the effects of electronic signatures are mainly reduced transaction costs and increased information.