Joint Keidanren-ILPF Workshop on Electronic Signatures and Authentication
November 19, 1999
In Japan, both government and industry are studying the
policy of electronic signatures and authentication. According to the
Nikkei newspaper of August 4, 1999 (headline article), the Obuchi
Administration is planning to introduce legislation to be adopted around
April, 2000. Currently the Ministry of International Trade and Industry
(MITI), the Ministry of Post and Telecommunications (MPT), and the
Ministry of Justice (MOJ) are working on the draft legislation.
The issue of electronic signatures is creating a global
policy debate. Since the Utah Digital Signature Act in 1995, almost every
state in the U.S. has enacted some sort of legislation to deal with the
use and recognition of electronic signatures. In Europe, individual
countries, such as Italy and Germany, have enacted digital signature laws
and the European Union is currently drafting a directive on this issue. In
Asia, countries such as Malaysia, Singapore and South Korea have enacted
As new and divergent laws and regulations develop on
this issue, the need for international harmonization (or at least
avoidance of inconsistency) increases. Because the Internet and e-commerce
are inherently global, legal and structural impediments to the global
nature of the new medium should be removed. At the same time, cultural
sensitivities and differences of legal structures should not be ignored.
If e-commerce is to become an opportunity for everyone in the world, legal
and regulatory systems of some should not be imposed to the detriment of
As a private sector participant in the global
development of e-commerce, the Internet Law & Policy Forum (ILPF) and
its members have been involved in this debate from the beginning. The ILPF
has conducted two surveys-the "U.S. State Electronic and Digital
Legislative Initiatives" (www.ilpf.org/digsig/update.htm)
and the "International Electronic and Digital Signature Initiatives" (www.ilpf.org/digsig/survey.htm).
The ILPF has also published its "International Consensus Principles for
Electronic Authentication" (www.ilpf.org/digsig/intlprin.htm)
which was presented to the OECD and other relevant forums.
International discussions on electronic signatures and
authentication in Japan are not only timely because of pending national
legislation, but also important for all global participants of e-commerce.
Pending Japanese legislation may influence policy in other parts of Asia,
where the information technology industry and the use of new technologies
are rapidly expanding. More importantly, knowing different cultural and
legal systems will create better understanding and offer new insights and
approaches for us all.
UNIQUE JAPANESE ISSUES
As an early participant in the Internet and e-commerce, Japan is
reviewing legal issues and challenges that are very similar to those
discussed in the U.S. and Europe. Nevertheless, there are some unique
cultural and legal issues, which include:
- The legislative reference to "signature and seals (stamps)."
In many official documents, such as the registration of real estate
transactions and marriages, the relevant laws require a physical signature
or stamp (which is commonly called "Hanko") affixed to documents. Some
argue that in order to accept electronic (or digital) signatures, Japan
would need to amend many statutory clauses so that the definition of
"seals" would include electronic signatures.
- There are cases in Japan where the court assumed that the
signature and seals affixed to documents are of those of the principal or
an agent. Section 228(4) of the Japanese Civil Procedure Law gives a legal
presumption that "if the signature and seals are of the principal or an
agent, the document was made by or on behalf of the principal."
In many cases, the court also assumes that there was no forgery of such
a document, depending upon the appearance of the document. The Japanese
Code of Civil Procedure does not have detail evidence rules such as those
in the common law countries. The written documents, even without the
signature and seal, can be admitted by the court as evidence. However,
written documents are most likely to be given a higher evidentiary weight
by the court as reliable evidence because of the existence of a physical
signature and seal appearing on them. Thus it is worth addressing, for the
pending Japanese legislation, whether and how to give similar presumptive
effect to electronic documents with electronic signatures.
- One proposal from the Japanese Administration is to create a
qualification system for authentication activities. Under this system,
certification authorities that wish to voluntarily apply for this
qualification must meet certain criteria set by the government.
Certificates issued by those qualified certification authorities can
automatically obtain the presumptive privilege under section 228 (4) of
the Civil Procedure law. (This does not deny the validity of certificates
issued by non-qualified certification authorities.) The critics of this
system argue that, "although the qualification system is voluntary and not
a requirement for the authentication business in Japan, this creates a
de facto mandatory qualification system because nobody would want
to use a second-class certification company."
- There are other more practical issues, too. Seals (Hankos)
are used in many transactions. For instance, at banks, clients are
identified by their registered seals. However, in many cases, these seals
are not legally required and similar seals are purchased very cheaply.
Because of this practice, electronic authentication may be more easily
accepted in Japan. Another example where electronic signatures may be
applied is the notary system in Japan, which is more highly regulated than
in other countries.
PROPOSAL FOR CONFERENCE
Keidanren, one of the largest industry federations in Japan, is
interested in this issue and has offered to hold jointly a workshop in
Japan with the ILPF. The workshop will be held at the Akasaka Prince Hotel
(downtown Tokyo) on Friday, November 19, 1999.
Chairman of the Board