Electronic signature of individuals according to the Electronic Transactions Law 2023
On June 22, 2023, the National Assembly passed the new Electronic Transactions Law, scheduled to take effect from July 1, 2024 (LET 2023). LET 2023 introduces significant changes regarding the use of electronic signatures by individuals as outlined below:
1) Restrict individuals’ rights to create and use electronic signatures
LET 2023 classifies electronic signatures into three categories as follows, none of which includes personally created electronic signatures:
Specialized electronic signatures (specialized electronic signatures) are created and used by organizations for “private activities” in accordance with their functions and tasks;
public digital signature (public digital signature) used for “public activities” and secured by a public digital signature confirmation electronic certificate issued by a qualified service provider;
Specialized digital signature for official use (digital signature for official use) is a digital signature used for official activities and is secured by an electronic certificate confirming the specialized digital signature for official use issued by a qualified service provider.
Unlike the broader definition of an electronic signature under the LET 2005, which may include signatures created by individuals themselves, this classification significantly limits the ability of individuals to create and use their own electronic signatures. Under LET 2023, individuals may be required to use public digital signatures issued by third-party service providers in routine electronic transactions.
2) Ambiguity regarding an individual’s dedicated electronic signature
On the one hand, Article 22.1(a) of the LET 2023 suggests that only organizations can create and use specialized electronic signatures for their private activities. The newly issued draft decree on electronic signatures and trust services (Draft electronic signature) also has a form of Secured Electronic Signature Certificate (Form No. 03) that clearly stipulates the subjects and scope of using specialized electronic signatures. -Signature includes only organizations.
On the other hand, the Draft Decree on Electronic Signatures provides a number of regulations stipulating that organizations, if qualified, can create specialized electronic signatures for individuals in their system. For example, according to the Draft Decree on Electronic Signatures, organizations holding specialized electronic signatures must store information of individuals who create and use specialized electronic signatures (Article 15.2), and establish a technical system to restore and update subscriber information (Article 15.2). 11.2(a)); have the right to issue electronic signature certificates to others (Article 8). If this view is adopted, this could facilitate e-commerce platforms (e.g. Momo, Lazada) in providing electronic signatures to users to conduct transactions on their platforms.
3) Some forms of electronic verification are no longer considered electronic signatures under LET 2023
The LET 2023 taxonomy of electronic signatures excludes various forms of electronic verification (e.g. OTP, SMS, scanned signature) from being considered electronic signatures. The drafters of LET 2023 also confirm this view ( link ). This approach appears to be more restrictive than LET 2005, which treats these types of verifications as electronic signatures in electronic transactions (see further discussion here ).
Although these electronic verification methods do not constitute electronic signatures under LET 2023, they may still be recognized as “ other means of electronic authentication ” to express acceptance in electronic transactions according to Article 22.4 of LET 2023. In addition, Article 400.4 of LET 2023 Civil Code 2015 also supports this view by allowing parties to accept contracts through alternative methods other than signing. However, one can strictly take the view that individuals can only use such electronic verification methods if the industry-specific law explicitly permitted because Article 22.4 requires other forms of electronic authentication to be “ in accordance with relevant laws ” In this case, an individual would be required to have a dedicated electronic signature or a public digital signature to execute an electronic contract, potentially limiting their freedom to choose forms of consent, contrary to the principle in Article 4.2 of the LET 2023.
