Contributed by Ostermann.
1. Legal framework for writing and electronic contracts
a. What are the requirements in your jurisdiction to consider a document to be in writing? Are there any formal/technical requirements?
For a document to be considered in writing under Croatian law, the parties must exchange letters or come to an agreement via other means that allow determining the content of their statements and the parties’ identities. Available “other means” depend on the development of technology which continuously provides further possibilities. Therefore, nowadays a written document is not only one where statements are written on paper. For instance, the Croatian Financial Services Supervisory Agency issued an official opinion that a leasing agreement concluded electronically meets the criteria of a mandatory written form if its content and the identity of the parties can be determined with certainty.
Despite the long-established principle for determining a party’s identity based on a full signature (first and last name), Croatian laws do not require an agreement to be signed (by hand or electronically) to be considered to be in writing. Along with a full signature, additional pieces of data specified in other parts of the document can also help identify parties, such as personal identification number and address.
b. Are electronic documents [e.g., an email] per se considered to be in writing under your law?
Due to technological developments and the introduction of electronic forms, Croatian law (and case law) adapted and now considers electronic documents, such as e-mails, as documents in writing. However, this specific approach requires caution due to the fact that an e-mail account can be registered without any identity check, so a manifestation of will via e-mail without a digital signature often might not be sufficient.
As a general rule, an electronic document can be considered to be in writing whenever its content is relatively permanently recorded, whereas the means by which such record has been created and the medium on which it is recorded are irrelevant, as long as they ensure that the record is relatively permanent. The content of an electronic document can therefore include all forms of written text, data, photos and graphics, maps, sound, music, and speech.
c. What probative power paper and/or electronic documents have that are to be considered in writing?
The advantage of any document in writing is that it makes proving its content much simpler, as opposed to proving orally concluded agreements. When it comes to paper documents, the burden of proof is on the party which disputes its authenticity or content. Specifically, probative power in such cases might depend on several factors (e.g., the existence and type of signatures, certification of a document by a notary public, and type of document [private or public]). For instance, if an official document was issued by a state authority, whatever is confirmed or established in that public document is presumed to be true, until proven otherwise.
The probative power of electronic documents depends on whether they contain a documentation feature. Documentation feature (as defined in the Electronic Document Act) is a set of data such as electronic signature, time of creation, name of the creator, and other data which are incorporated in a document in order to maintain its authenticity, integrity, and validity through time. This data enables verification of the creator’s identity, the authenticity of the message, and the time of creating, sending, and modifying the content. This is achieved by using an advanced electronic signature, a qualified electronic signature, and a qualified electronic time stamp. For the purposes of this article, we will refer to electronic documents with a documentation feature as “e-documents.”
Therefore, electronic documents in general have the same probative power as paper documents, but not all electronic documents have the same probative power. E-documents have greater probative power than electronic documents which do not contain documentation features. What is more, a printed copy of an e-document has the same probative power as certification of the content of the e-document by a notary public.
However, the submission of regular electronic documents and verifiable e-documents as court evidence is primarily limited by the ability of the court to accept and examine such evidence. On the other hand, in the case of regular electronic documents, the court can most likely examine their content, but it will be more difficult to prove the authenticity and origin of such documents.
d. What are the general rules and requirements to conclude a contract electronically?
Regarding the conclusion of contracts by electronic means, an electronic contract is concluded when the parties agree on the essential elements of the contract, i.e., at the moment when the offeror receives an electronic message containing the offeree’s acceptance (the same principle appropriately applies to the conclusion of contracts in general). One of the general requirements to conclude a contract electronically is that the contract is electronically signed, for the purpose of verification of the contracting parties’ identities.
The validity of a contract concluded in an electronic form, such as an e-mail, cannot be disputed solely on the ground that it was drawn up in an e-mail. Nevertheless, certain requirements still need to be met when concluding a contract electronically, such as the possibility to identify the parties, verify the authenticity of the content, and stability of the content over time, which all contribute to legal certainty, as it brings assurance and clarity regarding rights and obligations in a legal relationship.
To elaborate on the example of e-mails, as already mentioned, anyone can open an e-mail account without an identity check, which can raise the issue of proving the e-mail holder’s identity. However, if the contracting parties have regularly used certain e-mail addresses in their business, and especially if they have already used them in previous contracts or undertakings, then the requirement of identification will be considered met.
In compliance with the EU e-Commerce Directive, Croatia has restricted the right to conclude contracts electronically with regard to some types of contracts. Contracts that cannot be concluded electronically include real estate contracts (except lease), family law, and succession law contracts, as well as various contracts which require the participation of public authorities (notary public, court, etc.). Interestingly though, according to Croatian courts, guarantee contracts, which have also been excluded from the e-Commerce Directive, can be concluded electronically if the parties used a digital signature that confirms the authenticity and content of the document.
The possibility to conclude contracts electronically is also available in many everyday business situations, like employment contracts. The Ministry of Economy, Employment and Entrepreneurship of Croatia issued an official opinion that an employment contract that is concluded electronically and signed with a qualified electronic signature, is considered to be in writing in compliance with the Employment Act.
e. Are there any sector-specific rules that define further requirements to conclude contracts electronically [e.g., contracting via an authenticated electronic channel, contracting via video chat, etc.]?
Technology provides another means of communication that can be used for the conclusion of contracts – video calls. In essence, an agreement reached on a video call is an oral contract. However, if the video call is recorded, it can have the same effect as a written contract. This recording could be used as evidence of the contract itself, as well as of its terms and conditions.
While oral contracts are in general difficult to prove and enforce, recorded oral contracts, i.e., video call contracts can mitigate this problem. The recording of a video call contract could provide sufficient evidence for a court to determine whether the contract is enforceable. However, other call participants need to be previously notified that the call would be recorded, otherwise, such evidence might be dismissed by the court as illegal.
A more specific set of rules for the conclusion of contracts electronically can be found within the framework of consumer protection. For example, when selling products online, the seller has to provide a pre-contractual notification which contains a summary of the most important information regarding the seller, the product and/or service, the customers’ right to file a written complaint, and the customers’ right of unilateral termination of the contract. It is also obligatory to have a form for unilateral termination easily accessible to customers, and terms and conditions of sale which have to be available and transparent.
When concluding a distance contract in general (without the simultaneous physical presence of the trader and consumer in one place), the offer and its acceptance are considered to be received when the person to whom they are addressed can access them (through e-mail, applications, etc.).
2. Digital signatures
a. Are there any laws regulating the use of digital signatures in your jurisdiction?
The use of digital (electronic) signatures in Croatia is regulated directly by the EU Regulation No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (the eIDAS Regulation), which harmonized the legal framework for digital signatures on the level of the European Union.
However, the eIDAS Regulation has been further supplemented on the national level by the Act on Implementation of the eIDAS Regulation which imposes some additional obligations for the signatory, trust services provider, and the holders of means of electronic identification.
Firstly, every signatory is obligated to take all necessary measures of protection from loss and damage which might be caused to other signatories, trust services providers, or third parties. Above all, this includes applying due diligence in the use of the means and data for creating digital signatures, as well as protection from unauthorized access or use. Specifically, the signatory should do everything in its power to ensure that the means and data are under its exclusive supervision in order to prevent theft, loss, or unauthorized use. In case of loss of or damage to the means and data, the signatory has to notify the trust services provider and request revocation of the certificate.
Additionally, each signatory should notify the trust services provider of any and all changes which might affect the accuracy of the digital signature and deliver all relevant information within seven days of any such change.
Signatories will be liable for damage if they fail to comply with these obligations. Exceptionally, if the injured party did not take the necessary measures to validate the digital signature, then the signatory’s liability can be excluded.
The national legislator additionally regulated the revocation of certificates. The trust services provider must revoke a certificate in the following cases: if the signatory requested this, if certificate data is incomplete or inaccurate, if the signatory has passed away or has been deprived of legal capacity, or if digital signature data is being used contrary to the laws of Croatia.
For the purpose of preserving evidence to be used in judicial, administrative, and other proceedings, trust services providers are obligated to keep all documentation on issued and revoked certificates for ten years from the expiration of the certificate.
Penalties for non-compliance with the national acts and the eIDAS Regulation range approximately from EUR 260 to EUR 1,300 for natural persons, signatories, and representatives of legal entities, whereas trust services providers can be fined up to approximately EUR 13,000.
A number of other national laws also regulate digital signatures in certain sector-specific aspects, such as the E-commerce Act (legal framework for concluding contracts electronically, which is also partially regulated by the Civil Obligations Act), Accounting Act (regulates the use of digital signature in accounting documents), and the Electronic Communication Regulation (contains rules for electronically signing and submitting submissions to courts).
Digital signatures for a large number of contracts, however, are not clearly regulated. Therefore, before deciding on the type of signature being used, the nature of each contract and possible additional requirements for the perfection of the contract should be taken into account. For instance, the use of digital signatures is generally not possible for testamentary affairs, disposal of assets which requires consent from the Centre for Social Welfare, lifelong support agreements, and other contracts which have to be executed in the form of a notarial deed or if the certification of parties’ signatures by a notary public is mandatory. Since there is no conclusive list of such contracts, each case needs to be assessed individually to confirm whether it is indeed possible to digitally sign a given contract.
b. Is there any difference between the different types of digital signatures in your jurisdiction?
Pursuant to the eIDAS Regulation, only advanced digital signatures and qualified digital signatures enable the recognition of the legal effects of a digital signature. Specific requirements for advanced and qualified digital signatures are prescribed by the eIDAS Regulation (it is uniquely linked to the signatory, it enables identification of the signatory, it is created using data under the sole control of the signatory, and enables detection of any changes to the signed content).
A qualified digital signature is basically an advanced digital signature created by using advanced technology which enables a higher level of security. A qualified digital signature is considered to be equal to a handwritten signature and has the exact same legal effects (whereas the advanced digital signature is only verifiable and in general does not have the same legal effect as a handwritten signature).
Other digital signatures, such as a plain e-mail signature (name at the end of an e-mail) would be considered a “simple” digital signature, which does not have the legal effect of advanced and qualified digital signatures.
c. What probative power each type of digital signature has in your country?
According to the eIDAS Regulation, the legal effects of a digital signature as evidence in court proceedings cannot be denied solely because of its electronic form or because the signature does not meet all requirements for a qualified digital signature. E-documents should indeed have the same legal treatment as paper documents with handwritten signatures. From a practical point of view, this means that whoever disputes the authenticity of a digital signature, will have to propose evidence to prove their argument, in the same way as if it were a handwritten signature – e.g., by expert document examination.
Exceptionally, if there have been oversights by the signatory with regard to the protection of the means and data for creating a digital signature from unauthorized access and use, then the burden of proof could be transferred to the signatory. Otherwise, it is found that a qualified digital signature is authentic, and any contrary statements should be proven.
A specific difficulty arises in the case of signatures for which the certificate has expired. It is considered that these signatures are still valid if the certificate was valid at the time of signing, even though it might have expired in the meantime. However, this complicates the process of validation, which is then possible only by submitting a request to the trust services provider, which is obligated to keep all data for 10 years after the expiration of the certificate. Nevertheless, more problems may occur in the case of certain documents which have to be kept for more than 10 years, such as accounting documents, leaving open the question regarding the possibility of verification of such e-documents and digital signatures after the expiration of the 10-year period.
d. Are there any specific groups of people that are required to have digital signatures [e.g., attorneys, notaries, government officials, etc.]?
In accordance with the Civil Procedure Act, all state authorities, the state attorney’s office, attorneys-at-law, notaries public, court experts, court interpreters, bankruptcy administrators, liquidators, and all legal entities and natural persons who perform registered activities, are required to file their submissions to the court electronically. For this purpose, they must have previously obtained digital signatures. Submissions by these persons filed without a qualified digital signature will be disregarded by the court.
In performing their official duties, government officials (such as authorized persons in tax authorities, administrative bodies, judges, etc.) are also required to use digital signatures (unless the use of digital stamps is permitted instead).
e. Are non-personalized digital stamps recognized in your country with probative power [e.g., digital stamps used by companies, government, or administrative bodies]?
Non-personalized digital stamps can be used when an individual person is not required to sign a document, but it is sufficient to confirm that the document was issued by a certain legal entity. For instance, decisions in administrative proceedings can be signed either by a digital signature of the authorized official or by a digital stamp of the competent authority. Other examples of the use of digital stamps can be found in laws regulating the activities of notaries public and tax authorities, and digital stamps can also be used as a means of identification for anti-money laundering purposes.
The regulation of digital stamps is also based on the eIDAS Regulation (which uses the term electronic seal). The rules for digital signatures mostly apply to the digital stamp as well. The digital stamp can also be used as evidence in legal proceedings, whereas only a qualified digital stamp shall enjoy the presumption of integrity of the data and of the correctness of the origin of that data to which the digital stamp is linked. The requirements for advanced and qualified digital stamps are the same as the requirements for advanced and qualified digital signatures.
3. Digital archiving
a. Are there any laws regulating digital archives and digital archiving in your jurisdiction?
The Croatian Electronic Document Act only scarcely regulates digital archives and digital archiving. A digital archive is defined as a set of electronic documents organized into documentary units in accordance with the law and other regulations governing the procedures for the storage and archiving of documents. Digital archives can consist of any documents created with the application of information technologies written in the form of a binary code (images, sounds, PDF documents, etc.) in the form of a database.
Holders of public archives and archives of special significance for national history, science, and culture are additionally subject to provisions of the Act on Archival Materials and Archives, which also regulate the creation, storage, and conversion of archive materials to digital form.
Accounting documents can also be stored in digital form instead of paper, under conditions set out in the Accounting Act.
b. What are the main legal and technical requirements to digitally archive documents?
It is important to have proper storage and protection for the preservation of electronic documents since they need to be preserved in their original form. Even when stored, electronic documents need to be accessible, whereas in the case of e-documents, their content, sender, recipient, time, means, and form of creation and receipt need to be readily determined in a reliable manner at all times.
The digital archive needs to ensure that e-documents are kept in the original form in which they were created, sent, received, and stored and which does not allow changes or deletion of information and content of the document. The form of e-documents has to be readable to the persons who have the right to access them the entire time the documents are being preserved.
For the purpose of verification, the digital archive should also contain data on digital signatures on e-documents, as well as data necessary to determine the source, creator, time, and form in which the e-document has been received. Electronic documents are to be saved originally in the information system or on media which enables permanent electronic records for the established storage time.
Whenever a natural or legal person is obligated by law to keep documents in their original form, that person must keep the documents in accordance with the aforementioned conditions.
c. Is there any difference in your country’s regulations between the digital archiving of paper and electronic documents?
Paper documents can also be archived in a digital form in a manner that preserves the authenticity, integrity, origin, legibility, and confidentiality of documents. Documents that have been digitally archived without meeting these requirements, are to be kept in their original form as well until the expiration of the storage period.
A set of more specific requirements applies for archives of national interest subject to the Act on Archival Materials and Archives. In the case of cloud storage, archives have to be preserved in a separate cloud, protected by encryption and password, and the server must be located in Croatia.
These digital archives should be protected from loss by creating backup copies or using other methods, in accordance with the risk assessment, and the information system should enable the users to export archive units. Furthermore, the conversion of archives must be performed in a way that ensures the preservation of integrity, a guarantee of no unauthorized or undocumented modifications, and compliance with copyright regulations (where applicable).
Only documents converted to digital archives under the prescribed conditions are considered to be equal to the original documents.
d. Is any third party required to participate in the process of digital archiving in your country [e.g., a trusted service provider, government / administrative bodies, etc.]?
When it comes to private records, there is no legal requirement to engage a third party in the process of digital archiving. However, keeping a digital archive often requires special knowledge of information and communication technology, so it is logical to assume that many entities will use the services of persons who have that kind of know-how. This possibility has been foreseen in the Electronic Document Act, and the persons providing such services are known as information brokers.
Information brokers are obligated to ensure the security of procedures and electronic documents, but they are not responsible for the material content of electronic documents regarding which they provide their services in connection with the transfer, storage, and preservation of electronic documents.
e. Are there any sector-specific requirements and rules for digital archiving [e.g., archiving both the software and the related data to retrieve information in the financial sector]?
Most sector-specific requirements and rules for digital archiving can be found in the Accounting Act. Companies and entrepreneurs can convert their accounting documents preserved in the original paper form into electronic form if such conversion would not diminish their authenticity and probative power. The information system used for conversion should store information on who performed the conversion and when, for the purpose of verifying the source of the electronic form of a document.
Electronic records of accounting documents have to be stored in an information system that provides an appropriate level of protection from malware, unauthorized access, and loss of data and which ensures the integrity and legibility of the content until the expiration of the obligatory storage period.
Accounting documents converted in accordance with all legal requirements are considered to be identical to the original and have the same legal effects. Nevertheless, it is up to the entrepreneur to prove that the converted document is identical to the original, which seems an unjustified burden for a responsible business that complied with all legal requirements for such conversion. Moreover, this provision practically derogates the principle of equivalence of paper and electronic accounting documents, which might result in discouraging businesses from the use of digital archives altogether.
