Are there specific requirements for the validity of an electronic signature?
Technology (second edition)
The Code of Obligations sets out the principles governing e-signatures and refers to the Electronic Signatures Act of 18 March 2016, as amended (ESA), for the technical details, which in turn refers to its respective ordinance. An electronic signature is defined as electronic data which is joined or linked logically to other electronic data and which serves to verify such other data. The ESA distinguishes three levels of e-signatures: regular e-signatures, advanced e-signatures and authenticated e-signatures. The authenticated e-signature is deemed equivalent to a handwritten signature and can only be obtained from a recognised authority. A list of all such authorities in Switzerland is available on the competent federal authority’s website. Authenticated e-signatures are treated like handwritten signatures. Therefore, e-signatures cannot be used where the law sets out additional formal requirements, for example, in the case of a will (which must be handwritten in its entirety) or real estate deals (requiring a public deed). Additionally, authenticated e-signatures are only available for natural persons, not for legal entities.
Pursuant to the Electronic Signature Law, ‘electronic signature’ refers to the data in electronic form contained in and attached to a data message, for the use of identifying the identity of the signatory and showing that the signatory has recognized the content of the data massage. A reliable electronic signature has equal legal force with a hand-written signature or a seal. When an electronic signature concurrently meets the following conditions, it is reliable.
- When the creation data of the electronic signature is used for the electronic signature, it is exclusively owned by the electronic signatory.
- When the electronic signature is entered, the creation data is controlled solely by the electronic signatory.
- After the electronic signature is entered, any alteration to the electronic signature is detectable.
- After the electronic signature is entered, any alteration to the content and the form of the data massage is detectable.