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12 November 2020
The outbreak of COVID-19 and continuation of social distancing measures have brought to light a variety of issues concerning the signing and execution of wills. Consequently, the legal world has had to resort to digital means in order to sign such documents. One of the key digital means is the use of electronic signatures instead of handwritten or wet-ink signatures.
Cyprus was among the few EU member states which did not legislate a national plan for the issuance of electronic identities following the introduction of the EU Electronic Signatures Directive (1999/93/EC) in 1999. However, on 13 June 2018 Cyprus adopted Law 55(I)/2018, which incorporated the EU Regulation on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market (910/2014). This regulation was implemented as part of the European Commission's Digital Agenda (commonly known as 'eIDAS'), with the aim of promoting the use of digital tools to drive technological innovation while improving transparency, information security and interoperability across the European Union.
Cyprus adopted said regulation with the aim of boosting the domestic finance and banking sectors and easing business operations. The regulation took on greater prominence with the introduction of restrictions on person-to-person contact in the wake of the COVID-19 pandemic. On 8 May 2020 the Deputy Ministry of Research, Innovation and Digital Policy announced the implementation of the National Plan for Electronic Identities, which sets out guidelines for electronic identities, including electronic signatures.
Further, Article 25 of the regulation states that electronic signatures are admissible in legal proceedings and cannot be denied legal effect. The competent authority for the implementation of this legislative framework in Cyprus is the Department of Electronic Communications of the Ministry of Communications and Works.
The regulation recognises three types of electronic signature, with the aim of promoting digitisation across various areas, including law, business, state administration and finance.
The regulation defines an 'electronic signature' as "data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign". This type of signature can be attached to or be "logically associated with" specific electronic data.
Advanced electronic signatures
An 'advanced electronic signature' is defined as:
an electronic signature which is uniquely linked to the signatory, is capable of identifying the signatory, is created by using electronic signature creation data that the signatory can, with a high level of confidence, use under their sole control and is linked to the data therewith in such a way that any subsequent change in the data is detectable.
Therefore, this type of signature can be used as a means to identify the signatory.
Qualified electronic signatures
A 'qualified electronic signature' is a type of advanced electronic signature that is created with the use of a qualified electronic signature creation device and based on a qualified certificate for electronic signatures. Qualified electronic signatures are valid for one year from the date of issuance of the qualified certificate.
The Deputy Ministry of Research, Innovation and Digital Policy announced the procedure for the qualified electronic signature in May 2020 in view of the ongoing COVID-19 pandemic. At present, the Cyprus Stock Exchange is the authorised certification service provider responsible for issuing qualified certificates for electronic signatures. The Bank of Cyprus has also announced its own procedures for certifying electronic signatures for clients.
Certifications for advanced electronic signatures are provided by qualified trust service providers (QTSPs). The Department of Electronic Communications of the Ministry of Communications and Works is responsible for controlling and monitoring QTSPs under Law 55(1)2018 in order to ensure the provision of safe security trust products and services.
While only qualified electronic signatures have been afforded equal legal status as handwritten signatures, electronic signatures cannot be denied in legal or corporate proceedings solely on the basis of the signature being in electronic form or not meeting the criteria for qualified electronic signatures.
Under Section 9 of Law 55(1)2018, even if the electronic signature does not meet the criteria for a qualified signature, it can be admissible in legal proceedings in Cyprus. However, the courts have the discretion to accept or reject a signature as admissible on a case-by-case basis.
While the regulation has been in effect since 2018, the use of electronic signatures of all types became widespread in Cyprus only during the COVID-19 pandemic. This increased use has brought to light certain issues associated with the implementation and applicability of electronic signatures. This is especially true for instances where common law requires the witnesses and the signatory to be physically present in the same location, as is the case for wills. 'Remote witnessing', for instance, via videoconferencing, is not permitted under Cypriot law. This has proven to be a hurdle, especially with respect to the witnessing and execution of wills during the pandemic.
An amendment that permits the use of remote witnessing via videoconferencing, electronic signatures and electronic wills would not only help with the execution of wills in emergency situations, but would also further the goal of promoting digitisation in Cyprus.
Such amendments have already been introduced in some states of the United States and Canada (eg, Florida passed the Electronic Wills Act on 1 July 2020). Of course, safeguards would need to be implemented to ensure the security and authenticity of remote witnessing and videoconferencing.
For now, local authorities and the judicial system are still coming to grips with such technological advancements and the use of electronic signatures and other digital means.
For further information on this topic please contact Evripidis Michaelides at A G Paphitis & Co by telephone (+357 25 73 10 00) or by email (email@example.com). The A G Paphitis & Co website can be accessed at www.agplaw.com.
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