Click or digital signature? In recent months, the health emergency and the subsequent social distancing measures in place have given a strong boost to e-commerce. The sale of products and services online, which has been growing for several years now, has surged. After all, who hasn’t noticed that the local ice cream shop is now taking orders on its website? Or that goods from the local agricultural cooperative can now be ordered via email? Or that the Christmas panettoni are being reserved on the bakery’s website? Similarly, that our gas provider now makes contracts online without expecting users to show up at the counter… These are just a few of the many scenarios we are seeing as companies of every size — small, medium and large — have decided to sell their products and services online.
If you visit both new and established websites, you may have wondered, why is it that you can purchase with just a simple click on some sites (“just a click!” says the advertisement), while on others you need two or more? Some transactions could also require confirmation by email, or even an electronic or (rarely) a digital signature. This is a question to be posed to those creating the commerce site for creating the features for making contracts online that govern the sale of products or services. Therefore, we would like to provide some clarity on this topic.
From “ratafià” to click
It wasn’t so long ago that simple gestures were all that were needed to secure a transaction. A sale at the local livestock market would be sealed with a handshake, or a tough negotiation might end in drinking a “ratafià” (a typical Italian liqueur, from the Latin “rata fiat”) to signify that a deal had been made.
Such methods for closing a contract were possible because in our system, as in many others, the form of contracts is free.
Only in certain cases it is necessary for the contract to be made in writing, under penalty of its validity or legal effectiveness. The cases for which the written form is required are indicated in article 1350 of the Civil Code (which lists, for example, all contracts concerning real estate) and in some special laws such as the Consolidated Law on Banking and Credit, which provides that bank contracts must be drawn up in writing (without prejudice to Legislative Decree 23/20, which provides that during the period of health emergency, bank contracts must also be concluded with a consent sent by email, with a copy of the identity card attached). The Civil Code also states in Article 1888 that insurance contracts must be made in writing.
Outside of these cases, it is sufficient that the willingness of both parties to stipulate the contract, i.e. to assume reciprocal obligations, is evident. There are no constraints with respect to the way in which this must be expressed. That is why one click is sufficient.
The click of acceptance
For contracts offered online, the website presents an offer to the public, i.e. a contractual proposal that is directed to those who may be interested (art. 1336 of the Civil Code). For the contract to be concluded, the customer’s acceptance is required, which is expressed by ticking a box provided for the purpose. By clicking, the person who has made the proposal is notified of the acceptance of the other party.
In some cases, the parties are inverted: it is the customer who with his click presents the proposal to buy the goods or services that the seller displays on his site, and it is the latter who accepts. Acceptance is usually made by an email to the address provided by the customer or through a text message. This solution is adopted in cases where the seller prefers to reserve the last word, for example because he is not sure of the availability of the products and does not want to commit before the verification, or intends to assess the reliability of the customer, especially in cases where payments are deferred over time, etc.
Contractor data and contract information
With the exception of a few special cases, e.g. contracts for electronic communication services, there are no obligations to identify the customer. Whether or not the contractor’s data is required depends on the context. If the contract is concluded with online payment for the service, or if the burden of compliance is subordinate to such payment, there may be no need to know the identity of the customer.
Otherwise, the customer must be able to know the identity of the supplier, i.e. who he can demand the service from. In this regard, Legislative Decree 70/03, which transposes the European Directive on electronic commerce and Legislative Decree 206/05 with the Consumer Code, stipulate that information is provided to identify the supplier.
These two provisions, the first of a general nature and the second specific to consumer contracts, establish obligations that are aimed to ensure full transparency and knowledge of both the process leading to the conclusion of the contract, and the contract itself and how to dispose of it even after it has been concluded. They also provide that the order is followed by a feedback that contains a summary of the contract conditions, information on the essential features of the good or service, and a detailed breakdown of the price, means of payment, withdrawal conditions, delivery costs, and applicable taxes.
Regarding transparency, which is present in both rules with different levels of detail, provisions are added to the Consumer Code in favor of the consumer related to the right to withdraw from the contract within 14 days.
Double click
Usually, online contracts are concluded by adhering to the terms and conditions set by the seller. In this case, article 1341 of the Civil Code states that if the conditions contain vexatious terms, they must be expressly approved in writing. For example, if the contract provides for limitations of liability or tacit renewal upon expiration or exceptions to the jurisdiction of the court, it will not be sufficient for the customer to confirm the contract containing these terms. Instead, the customer will need to specifically approve them.
That is the reason for two clicks: one for adherence to the contract and the other for specific approval of vexatious clauses.
But is the click an adequate way to replace approval which, made in writing, would seem to have a formal constraint? In this regard, the jurisprudence is not unambiguous: more restrictive interpretations that see the so-called “point & click” as not meeting the requirements of the Civil Code (see judgment of the Court Catanzaro of April 30, 2012) are accompanied by other interpretations that recognize its validity (see judgment of the Court of Naples of March 13, 2018). The most recent trend goes in the direction of an openness to such acceptance, in line with a ruling of the Court of Justice of the European Union that has recognized the validity of the subscription by clicking on the condition that the approved clauses are registered permanently (EU Court of Justice of 21 May 2015 in case C-322/14).
The various options for the electronic signature
In some cases, as mentioned above, the click of acceptance is not the correct solution to conclude the contract because the written form is required. In other cases, it could be the same supplier that prefers to use this form, even if only for continuity with the mode adopted prior to the switch to online.
Legislative Decree 82/05 states that the computer document meets the requirements of the written form when there is a digital signature, another type of qualified electronic signature, an advanced electronic signature or, in any case, one that is formed, after computer identification of its author, through a process that adheres to AgID requirements. It adds, however, that for contracts for which the written form is established by Article 1350 of the Civil Code (in fact those indicated from number 1 to 12, and therefore except 13) it is possible to use only a qualified electronic or digital signature.
As a result, the contract is considered in writing if signed:
- with a digital signature. Considering that there are currently no other types of qualified electronic signatures, this is the only way to replace the handwritten signature for the contracts listed in Article 1350 (from 1 to 12);
- with advanced electronic signature;
- through Spid, the Public Digital Identification System, which, following recent AgID Guidelines, can also be used as a signature tool.
The written form can also be recognized also in different contexts. The law says that in other cases, the suitability of the computer document for meeting the requirements of the written form and its legal value are freely accessible in court, related to the features of security, integrity, and unchangeability.
The digital signature, which is a particular type of qualified signature issued by an authorized certifier, is not as well known or widespread among consumers. It is used for signing Public Administration contracts, which require the written form (in tender contracts, for example), and in contracts between individuals (companies and professionals) when, at the conclusion of commercial negotiations, you want to avoid exchanging signed paper copies. It is very rare that it is used for accepting an offer for the public on a site even if, considering that the digital signature can be used to identify the owner, this signature could also be used in other contexts. While this type of signature is not very widespread in the general public, it is a good choice because it’s very reliable.
Similar considerations could be made for Spid, except that the obligation for its use by citizens in various public administration proceedings makes it lean towards its future use also among consumers, allowing for its widespread use.
In terms of the advanced electronic signature, it is necessary to specify that it does not correspond to a specific technology solution but to several solutions, not subject to any prior authorization or requirements. These requirements are today set by a DPCM of 2013 (pending the AgID Guidelines) and the eIDAS Regulation. Overlooking some inconsistencies between the DPCM and the Regulation, which it is hoped will be resolved with the issuing of the AgID Guidelines, the requirements for advanced electronic signature are as follows:
- it is connected only to the signatory;
- it is suitable to identify the signatory;
- it is created by means of data for creating an electronic signature that the signatory can use, with a high level of security, under his/her exclusive control;
- it is linked to the signed data in order to allow the identification of any subsequent modification of such data.
If the solution meets these requirements, it can be considered an advanced electronic signature and then replace the handwritten signature to the contract (obviously except in cases where digital signature is necessary, as mentioned above).
These requirements must be met both by those who intend to create their own advanced electronic signature system to be used with contractors, and by those who propose this system to third parties for use in such situations. Considering that the most frequent case is the second, in the hypothesis that a third party is approached for an advanced electronic signature solution, it is necessary to verify if and how the proposed solution meets the above requirements.
Today, the advanced electronic signature in its various solutions is used in different contexts. It is used, for example, in the utilities sector (energy, gas etc.) which avoids citizens having to go to a physical counter to sign a contract. It is also used in banking or insurance for signing documents as well as for orders and mandates; it is used by employment agencies to allow workers to sign contracts directly from home etc.. The variety of solutions lends itself to different scenarios.
Conclusion
For those who approach the world of electronic commerce there are, therefore, different ways to conclude contracts. From the simple click to the use of the digital signature, the solutions on the market and recognized by the legal system are different.
The choice of the most appropriate mode must take into account the legal obligations and the possible need to enforce the contract in court.
On the other hand, the context also has its importance: complex techniques could weigh down the purchasing process, inducing the potential customer to abandon it. The same could happen if the process required tools that were not widely diffused, which could impact the reference market.
For this reason, the various needs must be well calibrated, also considering that, if it is useful to maintain a certain continuity regarding the traditional ways of concluding contracts, sometimes it may be appropriate to deviate from them by examining the possibilities that the legal system and IT solutions offer.