Electronic Signature In Tunisia
The electronic signature is a topical subject in Tunisia which knows a paradox manifested by the existence of a legal and regulatory framework put in place for twenty years on the one hand and a refusal of use by the public on the other hand.
The electronic signature is defined as being a mechanism making it possible to guarantee the integrity of an electronic document and to authenticate its author, by analogy with the handwritten signature of a paper document. It is a huge time saver since it allows contracts to be drawn up or the transmission of binding information without having to travel.
Tunisia initiated since 2000 a law which laid down the principles of electronic signature and the procedure to be followed for its implementation, it is the law 2000-83 of August 9, 2000 relating to Electronic Trade and Commerce .
Nevertheless, following the “Covid-19” pandemic, the decree-law n ° 2020-31 of June 10, 2020, relating to the electronic exchange of data between the structures and their users and between the structures themselves, came support law 2000-83 of August 9, 2000 to give more values and more encouragement to electronic digitization and the use of electronic signatures (declarations, calls for tenders, contracts, etc.), which has helped us to fulfill our obligations towards the State with regard to tax declarations, and to sign contracts without traveling.
Subsequently, the government decree n ° 2020-777 of October 5, 2020 was published fixing the conditions and modalities of application of the provisions of the decree-law n ° 31 of June 10, 2020 relating to the electronic exchange of data between public structures and their clients and between the structures themselves. The Article. 5 of the said decree provides that: “The public structures have recourse in the electronic messaging process to national systems approved for this purpose or to electronic mail, unless the legislation in force provides for a specific form of electronic messaging”.
The purpose of this law was to exempt citizens from providing documents from one administration to another and to set up electronic messaging, reinforced by electronic authentication services. Therefore, public officials will be provided with a professional email address, which will formalize electronic correspondence with the public administration. Once implemented, the citizen will be able to use the electronic signature and be able to exchange electronically signed documents with the public administration and request eGov services online from all Tunisian administrations, such is the case for the CNSS , CNRPS, E-jibeya …
In addition, the Tunisian legislator granted the same value to the electronic signature as that of the handwritten signature, Thus, article 453 paragraph 2 of the Code of obligations and contracts (COC) provides that: “The signature consists in opposing the contracting party’s own hand a name or a special sign integrated into the writing to which it relates. When the signature is electronic, it consists of the use of a reliable identification process guaranteeing the link between said signature and the electronic document to which it is attached ”.
Article 453 bis adds that: “The electronic document is the writing made up of a set of letters and numbers or other digital signs including that which is exchanged by the means of communication on condition that it is of a content intelligible, and archived on an electronic medium which guarantees its reading and consultation when necessary. The electronic document is proof as an act under private signature if it is kept in its final form by a reliable process and is reinforced by an electronic signature ”
On the other hand, the electronic document may then have the legal value of the authentic instrument in accordance with article 449 of the COC providing that: The deed under private signature, recognized by the party to which it is opposed, or legally held for recognized, has the same faith as the authentic instrument, towards all persons, of the provisions and statements that it contains, under the conditions set out in Articles 444 and 445 above except as regards the date, as will be said below.
Despite this significant advance in digital matters, we still face a fear of the use of electronic signatures, particularly with regard to payment and contract signing. Also, the establishment of the culture of the electronic signature in Tunisia encounters several difficulties mainly because very few administrations accept it although it is legal, due to a lack of familiarity with this format of signature.
However, the apparent makes believe that it is the law in Tunisia which blocks the courts and the administrations from using the electronic signature, but in truth it is us, it is the public which prevents this transformation towards digital and this shift from “paper” to “zero paper”.
The recommendations :
Now that the regulatory framework and the technical solutions are there, it is time to establish the culture of electronic signatures in Tunisia for the public and private sector by the following means:
* Make awareness raising campaigns;
* Train and equip government employees;
* Change the internal regulations at the level of the administrations in order to make the electronic signature the “default” signature;
* Implement a digital channel that allows you to send and receive a document with an electronic signature;
* Improve the technical axis in order to simplify the procedure and the request for electronic certification.
Migration to electronic signature remains a shared responsibility between the private sector (startups and others) and the public sector.