E-Signature Legality Summary
In the Russian Federation, the use of electronic records and electronic signatures is regulated by both federal laws and secondary legislation. The main applicable law regarding electronic signatures is Federal Law 63-FZ, which regulates the use of electronic signatures for:
various transactions,
the provision of state and municipal services,
the performance of state and municipal functions, and
the performance of other legally significant actions.
Other applicable regulations with regard to electronic signatures are Order of the FSB of the Russian Federation No. 795 of 27 December 2011 "On the Approval of the Requirements for the Form of a Qualified Electronic Signature Verification Key Certificate" and Order of the FSB of the Russian Federation No. 796 of 27 December 2011 "On the Approval of the Requirements for Electronic Signature Facilities and Requirements for the Facilities of the Certification Authority."
Types of Electronic Signature
The types of electronic signatures used in the Russian Federation regulated by Federal Law 63-FZ are a simple electronic signature and an enhanced electronic signature. For enhanced electronic signatures, there is a distinction made between an enhanced “unqualified” electronic signature and an enhanced “qualified” electronic (digital) signature.
According to section 1 of article 2 of Federal Law 63-FZ, an electronic signature is information in an electronic form attached to or otherwise linked to other information in an electronic form (the information to be signed) and used to identify the person signing the information.
Pursuant to section 2 of article 5 of Federal Law 63-FZ, a simple electronic signature is an electronic signature which, using codes, passwords, or other means, confirms that an individual has created an electronic signature.
Pursuant to section 3 of article 5 of Federal Law 63-FZ, an enhanced unqualified electronic signature is an electronic signature which (i) is obtained as a result of the cryptographic transformation of information using an electronic signature key; (ii) allows the person, who signed the electronic document, to be identified; (iii) allows any alteration of the electronic document after it has been signed to be detected; and (iv) is created by means of an electronic signature.
According to section 4 of article 5 of Federal Law 63-FZ, an enhanced qualified electronic (digital) signature is an electronic signature that meets all the attributes of a simple electronic signature and the following additional attributes: (i) an electronic signature verification key is specified in the qualified (digital) certificate of the electronic signature; and (ii) electronic signature tools with Federal Law 63-FZ confirmation of compliance requirements are used for creating and verifying the electronic signature.
Documents That May be Signed Electronically
As a general rule, it is possible to enter into a contract electronically if the contract belongs to a category of contracts that can be entered into in a simple written form (i.e., without special requirements to its execution). The simple written form is generally permissible for any contract, except for certain types of contracts specified in the law.
Such contracts generally require (i) through a signer accepting an electronic offer to enter into the schedule of services by implicative actions (e.g., clicking "agree" button and making the payment), (ii) using a simple or an enhanced unqualified electronic signature, provided that the parties agreed so in a "wet-ink" written paper document; or (iii) using an enhanced qualified electronic (digital) signature.
Further Guidance
Transactions with real property require an enhanced qualified electronic (digital) signature if done electronically.
If the validity or authenticity of an electronic signature is challenged, the party seeking to rely on the electronic signature may need to provide further evidence to support the validity of the electronic signature, such as authenticating the signer (to ensure that it was the person who expressed the will to enter into the contract), applying a tamper-evident seal to the document to ensure it was not altered since signing, and to maintain an audit log that captures all the signer’s actions during the signing session. An enhanced qualified electronic (digital) signature is presumed to be legally equivalent to a "wet-ink" signature without the need of additional proof.
The enforceability of an electronic signature depends on several factors: the availability of the required type of electronic signature (simple, enhanced unqualified/ enhanced qualified); and the absence of legal restrictions on signing a contract using an electronic signature.
