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Statutory Instruments

2002 No. 318

ELECTRONIC COMMUNICATIONS

The Electronic Signatures Regulations 2002

Made

13th February 2002

Laid before Parliament

14th February 2002

Coming into force

8th March 2002

The Secretary of State, being designated(1) for the purpose of section 2(2) of the European Communities Act 1972(2) in relation to electronic signatures, in exercise of the powers conferred on her by the said section 2(2), hereby makes the following Regulations:

Citation and commencement

1.  These Regulations may be cited as the Electronic Signatures Regulations 2002 and shall come into force on 8th March 2002.

Interpretation

2.  In these Regulations—

Supervision of certification-service-providers

3.—(1) It shall be the duty of the Secretary of State to keep under review the carrying on of activities of certification-service-providers who are established in the United Kingdom and who issue qualified certificates to the public and the persons by whom they are carried on with a view to her becoming aware of the identity of those persons and the circumstances relating to the carrying on of those activities.

(2) It shall also be the duty of the Secretary of State to establish and maintain a register of certification-service-providers who are established in the United Kingdom and who issue qualified certificates to the public.

(3) The Secretary of State shall record in the register the names and addresses of those certification-service-providers of whom she is aware who are established in the United Kingdom and who issue qualified certificates to the public.

(4) The Secretary of State shall publish the register in such manner as she considers appropriate.

(5) The Secretary of State shall have regard to evidence becoming available to her with respect to any course of conduct of a certification-service-provider who is established in the United Kingdom and who issues qualified certificates to the public and which appears to her to be conduct detrimental to the interests of those persons who use or rely on those certificates with a view to making any of this evidence as she considers expedient available to the public in such manner as she considers appropriate.

Liability of certification-service-providers

4.—(1) Where—

(a)a certification-service-provider either—

(i)issues a certificate as a qualified certificate to the public, or

(ii)guarantees a qualified certificate to the public,

(b)a person reasonably relies on that certificate for any of the following matters—

(i)the accuracy of any of the information contained in the qualified certificate at the time of issue,

(ii)the inclusion in the qualified certificate of all the details referred to in Schedule 1,

(iii)the holding by the signatory identified in the qualified certificate at the time of its issue of the signature-creation data corresponding to the signature-verification data given or identified in the certificate, or

(iv)the ability of the signature-creation data and the signature-verification data to be used in a complementary manner in cases where the certification-service-provider generates them both,

(c)that person suffers loss as a result of such reliance, and

(d)the certification-service-provider would be liable in damages in respect of any extent of the loss—

(i)had a duty of care existed between him and the person referred to in sub-paragraph (b) above, and

(ii)had the certification-service-provider been negligent,

then that certification-service-provider shall be so liable to the same extent notwithstanding that there is no proof that the certification-service-provider was negligent unless the certification-service-provider proves that he was not negligent.

(2) For the purposes of the certification-service-provider’s liability under paragraph (1) above there shall be a duty of care between that certification-service-provider and the person referred to in paragraph (1)(b) above.

(3) Where—

(a)a certification-service-provider issues a certificate as a qualified certificate to the public,

(b)a person reasonably relies on that certificate,

(c)that person suffers loss as a result of any failure by the certification-service-provider to register revocation of the certificate, and

(d)the certification-service-provider would be liable in damages in respect of any extent of the loss—

(i)had a duty of care existed between him and the person referred to in sub-paragraph (b) above, and

(ii)had the certification-service-provider been negligent,

then that certification-service-provider shall be so liable to the same extent notwithstanding that there is no proof that the certification-service-provider was negligent unless the certification-service-provider proves that he was not negligent.

(4) For the purposes of the certification-service-provider’s liability under paragraph (3) above there shall be a duty of care between that certification-service-provider and the person referred to in paragraph (3)(b) above.

Data Protection

5.—(1) A certification-service-provider who issues a certificate to the public and to whom this paragraph applies in accordance with paragraph (6) below—

(a)shall not obtain personal data for the purpose of issuing or maintaining that certificate otherwise than directly from the data subject or after the explicit consent of the data subject, and

(b)shall not process the personal data referred to in sub-paragraph (a) above—

(i)to a greater extent than is necessary for the purpose of issuing or maintaining that certificate, or

(ii)to a greater extent than is necessary for any other purpose to which the data subject has explicitly consented,

unless the processing is necessary for compliance with any legal obligation, to which the certification-service-provider is subject, other than an obligation imposed by contract.

(2) The obligation to comply with paragraph (1) above shall be a duty owed to any data subject who may be affected by a contravention of paragraph (1).

(3) Where a duty is owed by virtue of paragraph (2) above to any data subject, any breach of that duty which causes that data subject to sustain loss or damage shall be actionable by him.

(4) Compliance with paragraph (1) above shall also be enforceable by civil proceedings brought by the Crown for an injunction or for an interdict or for any other appropriate relief or remedy.

(5) Paragraph (4) above shall not prejudice any right that a data subject may have by virtue of paragraph (3) above to bring civil proceedings for the contravention or apprehended contravention of paragraph (1) above.

(6) Paragraph (1) above applies to a certification-service-provider in respect of personal data only if the certification-service-provider is established in the United Kingdom and the personal data are processed in the context of that establishment.

(7) For the purposes of paragraph (6) above, each of the following is to be treated as established in the United Kingdom—

(a)an individual who is ordinarily resident in the United Kingdom,

(b)a body incorporated under the law of, or in any part of, the United Kingdom,

(c)a partnership or other unincorporated association formed under the law of any part of the United Kingdom, and

(d)any person who does not fall within sub-paragraph (a), (b) or (c) above but maintains in the United Kingdom—

(i)an office, branch or agency through which he carries on any activity, or

(ii)a regular practice.

(8) In this regulation—

Douglas Alexander

Minister of E-Commerce and Competitiveness in Europe,

Department of Trade and Industry

13th February 2002

(Regulation 2)

SCHEDULE 1(Annex I to the Directive)

REQUIREMENTS FOR QUALIFIED CERTIFICATES

Qualified certificates must contain:

(a)an indication that the certificate is issued as a qualified certificate;

(b)the identification of the certification-service-provider and the State in which it is established;

(c)the name of the signatory or a pseudonym, which shall be identified as such;

(d)provision for a specific attribute of the signatory to be included if relevant, depending on the purpose for which the certificate is intended;

(e)signature-verification data which correspond to signature-creation data under the control of the signatory;

(f)an indication of the beginning and end of the period of validity of the certificate;

(g)the identity code of the certificate;

(h)the advanced electronic signature of the certification-service-provider issuing it;

(i)limitations on the scope of use of the certificate, if applicable; and

(j)limits on the value of transactions for which the certificate can be used, if applicable.

(Regulation 2)

SCHEDULE 2(Annex II to the Directive)

REQUIREMENTS FOR CERTIFICATION-SERVICE-PROVIDERS ISSUING QUALIFIED CERTIFICATES

Certification-service-providers must:

(a)demonstrate the reliability necessary for providing certification services;

(b)ensure the operation of a prompt and secure directory and a secure and immediate revocation service;

(c)ensure that the date and time when a certificate is issued or revoked can be determined precisely;

(d)verify, by appropriate means in accordance with national law, the identity and, if applicable, any specific attributes of the person to which a qualified certificate is issued;

(e)employ personnel who possess the expert knowledge, experience, and qualifications necessary for the services provided, in particular competence at managerial level, expertise in electronic signature technology and familiarity with proper security procedures; they must also apply administrative and management procedures which are adequate and correspond to recognised standards;

(f)use trustworthy systems and products which are protected against modification and ensure the technical and cryptographic security of the process supported by them;

(g)take measures against forgery of certificates, and, in cases where the certification-service-provider generates signature-creation data, guarantee confidentiality during the process of generating such data;

(h)maintain sufficient financial resources to operate in conformity with the requirements laid down in the Directive, in particular to bear the risk of liability for damages, for example, by obtaining appropriate insurance;

(i)record all relevant information concerning a qualified certificate for an appropriate period of time, in particular for the purpose of providing evidence of certification for the purposes of legal proceedings. Such recording may be done electronically;

(j)not store or copy signature-creation data of the person to whom the certification-service-provider provided key management services;

(k)before entering into a contractual relationship with a person seeking a certificate to support his electronic signature inform that person by a durable means of communication of the precise terms and conditions regarding the use of the certificate, including any limitations on its use, the existence of a voluntary accreditation scheme and procedures for complaints and dispute settlement. Such information, which may be transmitted electronically, must be in writing and in readily understandable language. Relevant parts of this information must also be made available on request to third parties relying on the certificate;

(l)use trustworthy systems to store certificates in a verifiable form so that:

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures(5). The provisions of this Directive which are implemented relate to the supervision of certification-service-providers, their liability in certain circumstances and data protection requirements concerning them; provisions in the Directive relating to the admissibility of electronic signatures as evidence in legal proceedings were implemented by section 7 of the Electronic Communications Act 2000 (2000 c. 7).

Regulation 3 imposes a duty on the Secretary of State to keep under review the carrying on of activities of certain certification-service-providers, to establish, maintain and publish a register of these certification-service-providers and to have regard to any evidence of their conduct which is detrimental to users of qualified certificates with a view to publication of any of this evidence.

Regulation 4 imposes liability on certification-service-providers in certain circumstances even though there is no proof of negligence unless the certification-service-provider in question proves he was not negligent.

Regulation 5 imposes a duty on certification-service-providers in certain circumstances to comply with specified data protection requirements. Breach of that duty is actionable by a data subject who suffers loss and compliance with the requirements can also be enforced by civil proceedings by the Crown.

A transposition note setting out how the main elements of the Directive are transposed into law has been placed in the libraries of both Houses of Parliament. Copies are also available from Information Security Policy Group, Communications and Information Industries Directorate, Department of Trade and Industry, Bay 226, 151 Buckingham Palace Road, London SW1W 9SS.

(1)

S.I. 2000/738.

(3)

OJ No. L13, 19.1.00, p. 12.

(5)

OJ No. L13, 19.1.00, p. 12.