The Ministry of Digital Affairs announced the draft amendments to the Electronic Signatures Act (the “Act”) on 27 June 2023. We summarize below:
1.Supplement the definition of digital signature (Article 2 of the amended Act): The amended Article 2 clarifies that a digital signature is a type of electronic signature and the digital signatures shall be issued by the certification service provider under this Act and verified by the public key. The signature verified by the public key but not issued by the certification service provider under this Act is not qualified as digital signature under this Act. However, if it can be proved that such a signature meets the requirements for an electronic signature under Paragraph 2 of Article 2, it will still be regarded as an electronic signature.
2.Change of the competent authority (Article 3 of the amended Act): In line with the organization reform of the Executive Yuan, the competent authority of this Act was changed to the Ministry of Digital Affairs as of 27 August 2022.
3.Doctrine of Functional-Equivalent (Article 4 of the amended Act): It is specified that electronic record and electronic signature are functionally equivalent to physical record and signature respectively.
4.Removal of requirement regarding consent from the counterparty and provision of opportunity for the counterparty refusal (Article 5 of the amended Act): It is amended that the consent of the counterparty is not required for the use of electronic record or electronic signature, considering that the use of record or signature in practice is not limited to the legal acts with a counterparty. However, for the cases where the use of record or signature involves a counterparty, the counterparty shall be given an opportunity to refuse using electronic form, or be provided with alternative options.
5.Strengthen the legal effect of digital signature (Article 6 of the amended Act): The digital signature is presumed being personally signed so as to enhance the strength of legal effect of digital signature. Namely, using a digital signature to sign an electronic record is in principle equivalent to being signed in person. If a dispute arises regarding the authenticity of the signature, the burden of proof lies with the party claiming that the signature is not personally signed by the individual.
6.Revision of the applicable scope of the Act (Article 11 of the amended Act): Except that the application of technology and procedures for electronic record and electronic signature may be separately regulated or announced, the administrative authority shall not exclude the application of this Act through orders or announcement.
7.Revision of regulations for permitting foreign companies operating digital signature certification service in Taiwan (Article 16 of the amended Act): The matters to be considered before permission by the competent authority includes technical docking cooperation in addition to the principles of reciprocity and equivalent security requirements.
8.Transitional provisions (Article 17 of the amended Act):
The announcement of excluding the application of the Act made by the government agency prior to its amendment shall cease to take effect three (3) years after the enforcement of this amendment.
Stacy Lo