MALTA Law and Practice Contributed by: Andrew J Zammit, James Bartolo and Nicholas Scerri, GVZH Advocates
ket for trust services by guaranteeing that these services will function internationally and have the same legal standing as their conventional paper- based counterparts. The eIDAS Regulation was transposed into the Maltese eCommerce Act and the Electronic Trust Services Notification and Fees Regulations SL 426.03 by virtue of Act XXXV of 2016, which also repealed or amended all local provisions that were previously in force but were inconsistent with the eIDAS Regulation. The Regulation deals with three types of electronic signatures: stand - ard, advanced or qualified, as detailed below. • An advanced electronic signature (AdES) is one that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use it under their sole control; and (d) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable. • A qualified electronic signature (QES) is an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures. In other words, a QES is an advanced electronic signature with a digital certificate that has been encrypted by a secure signature crea - tion device through a qualified trust service provider (requirements for these are also in the law). The eIDAS Regulation provides that an electron - ic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic
form or that it does not meet the requirements for qualified electronic signatures (for example, with a scanned signature, one would need to prove its validity with additional evidence). On the other hand, a qualified electronic signature has the equivalent legal effect of a handwritten signature. If a qualified electronic signature is based on a qualified certificate issued in one member state, it must be recognised as a quali - fied electronic signature in all other member states. Schedule 5 of the Maltese eCommerce Act lists certain activities/areas in respect of which an electronic signature is not valid: • the field of taxation; • matters in relation to information society services covered by any laws relating to data protection; • questions in relation to agreements or prac - tices governed by competition law; • the following activities of information society services: (a) the activities of notaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority; (b) the representation of a client and defense of their interests before the courts; and (c) gambling activities which involve wager - ing a stake with monetary value in games of chance, including lotteries and betting transactions; • contracts that create or transfer rights over immovable property other than leasing rights; • contracts of suretyship granted and on col - lateral security furnished by persons acting for purposes outside their trade, business or profession; • the law governing the creation, execution, amendment, variation or revocation of:
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