- The Concept and Legal Basis of Electronic Signatures
In many countries around the world, there are various forms and conditions for electronic signature and digital signature applications that verify the identity of the signatory. The electronic signature, as defined in the Electronic Signature Law No. 5070, is electronic data that is attached to or logically associated with other electronic data and used for identification purposes. In other words, an electronic signature consists of letters, characters, or symbols that electronically or through similar means guarantee that information has been transmitted in an environment inaccessible to third parties, without its integrity being compromised, and with the identities of the parties verified. In short, the electronic signature adopted by the Electronic Signature Law is an application that, with the exception of certain transactions, eliminates the requirement to use a wet-ink signature in business life. Therefore, while the concept of electronic signature is a very general definition, it includes digitized signatures (scanned versions of handwritten signatures), biometric signatures that involve the recording and use of individuals’ biological characteristics, or digital signatures that verify the integrity of the information and the identities of the parties. In this context, the concept of “electronic signature” as used in the Electronic Signature Law No. 5070 and in this text is essentially a “digital signature.”
In our country, only electronic signatures that meet the conditions specified in the Electronic Signature Law and are provided by secure electronic service providers are considered conclusive evidence, just as wet-ink signatures are in our legal system. In this regard, for foreign electronic service providers’ signatures to be valid in our country, it is not sufficient for their e-signature service to merely meet the conditions in the law; they must also have their application, along with the necessary information and documents, approved by the Information and Communication Technologies Authority (BTK) to become an electronic service provider, in accordance with the Regulation on the Implementation of the Electronic Signature Law. On the other hand, Article 5 of the Electronic Signature Law states, “A secure electronic signature has the same legal effect as a handwritten signature. Legal transactions subject to an official form or a special ceremony by law, as well as security agreements, cannot be executed with a secure electronic signature.”
Furthermore, the characteristics of the qualified electronic certificate on which the secure electronic signature is based are specified in Article 9 of the same Law as follows: “It is mandatory for the certificate to include an indication that it is a ‘qualified electronic certificate,’ the identity information and country of establishment of the certificate service provider, the identification information of the signatory, the signature verification data corresponding to the signature creation data, the start and end dates of the certificate’s validity period, the certificate’s serial number, information regarding the authority if the certificate holder is acting on behalf of another person, professional or other personal information if requested by the certificate holder, any terms of use and monetary limits for transactions, and the secure electronic signature of the certificate service provider verifying the information contained in the certificate.” Therefore, under these provisions, for any electronic signature created in an electronic environment to have the same standing as a handwritten signature in our country, it must be created with a secure electronic signature.
- Types of Electronic Signatures
The concept of electronic signature covers different applications:
a. Simple e-signature: These are signatures that help verify identity but have limited legal value, such as biometric signatures or digital signature applications. They can be used for contracts that do not have a written form requirement.
b. Digital (scanned) signature: This is the scanned version of a handwritten signature and has limited legal validity. It does not have the status of conclusive evidence like a secure electronic signature but can be considered “prima facie evidence” in terms of the law of evidence.
c. Secure electronic signature (qualified e-signature): This is a signature created with a qualified electronic certificate, using devices unique to the signatory, which authenticates identity and guarantees data integrity. It is the only electronic signature legally equivalent to a wet-ink signature.
- Secure Electronic Signature and Its Legal Consequences
A secure electronic signature is unique to the signatory, verifies their identity, and makes it possible to detect whether any subsequent changes have been made to the signed data. Due to these features, it is legally considered “conclusive evidence” until proven otherwise.
Electronic data created with a secure electronic signature in due form are considered equivalent to a written commercial papers. This data is regarded as conclusive evidence unless proven otherwise. (Code of Civil Procedure, Art. 205/2)
Its areas of application are extensive:
a. Signing corporate general assembly resolutions
b. Executing contracts electronically
c. Filing lawsuits via UYAP (National Judiciary Informatics System)
d. E-invoices, e-ledgers, tax returns, SGK (Social Security Institution) declarations
e. E-government and electronic notification procedures
However, the legislator has excluded certain legal transactions from the scope of secure electronic signatures, such as transactions strictly personal in nature (e.g., marriage, inheritance contracts).
- Use of E-signatures in Different Types of Contracts
The validity of e-signatures for contracts varies under Turkish law:
a. Contracts subject to a simple written form requirement (e.g., pre-emption agreements, assignment of receivables agreements): A secure electronic signature is sufficient.
b. Contracts subject to an official form (e.g., real estate sales, mortgage establishment): These cannot be executed with a secure e-signature as they can only be conducted at a notary’s office or a registry.
c. Security agreements: Guarantee agreements, other than bank letters of guarantee, cannot be executed with a secure e-signature.
d. Contracts not subject to a specific form (e.g., lease, distributorship, service and goods supply agreements): A simple e-signature is sufficient.
At this point, it should be remembered that in terms of evidentiary value, a secure e-signature constitutes conclusive evidence until proven otherwise, whereas a simple e-signature only constitutes prima facie evidence.
- Application in Turkey and BTK Regulations
In Turkey, secure electronic signatures can only be provided through Electronic Certificate Service Providers (ECSPs) authorized by the Information and Communication Technologies Authority (BTK). Article 9 of Law No. 5070 details the elements required in qualified electronic certificates. These elements include the provider’s information, the signatory’s identity information, the validity period, the serial number, and the provider’s own secure signature.
- Foreign Law and International Practices
In the European Union, under the eIDAS Regulation (No 910/2014), a “Qualified Electronic Signature (QES)” is considered equivalent to a secure electronic signature and has the same legal effect as a handwritten signature. In the USA, platforms like DocuSign can be valid as simple electronic signatures under the “Electronic Signatures in Global and National Commerce Act (ESIGN).” However, the evidentiary power of these signatures is not at the level of a secure electronic signature in Turkey. They are not conclusive evidence but merely prima facie evidence. They can be used as a means of proof if the parties agree, but they are not sufficient to prove a legal transaction on their own.
- Conclusion and Evaluation
The electronic signature emerges as one of the most important elements of digital transformation in modern legal systems. From the perspective of Turkish law, the secure electronic signature is considered equivalent to a handwritten signature and fulfills the written form requirement. In contrast, simple and digital signatures have more limited technical or legal validity. Therefore, it is imperative for legal certainty that parties determine which type of electronic signature to use, taking into account the nature of the transaction and its potential consequences.
In practice, some companies, especially in international transactions, use foreign-origin electronic signature solutions like DocuSign. However, since such systems are not recognized as secure electronic signatures under Turkish law, they are not valid on their own and, in the event of a dispute, their validity must be supported by additional evidence. To validly conclude a contract subject to Turkish law, a wet-ink signature or a secure electronic signature is generally required.
R&S Law and Consulting retains ownership of the copyright for all content, design, and materials contained in this document. Please note that reproduction, distribution, or modification of any portion of this document is strictly prohibited without prior written consent.
