Case Note

Case note Greece

Case No Court Decision No. 1963/2004
Name and level of court Court of First Instance of Athens
President of Court (1 member) N. Roussos
Lawyers G. Loukeris, S. Spyropoulos

The sender of an e-mail message is also the legally convoked General Assembly’s decision,
editor of the text that accompanies the message, opposed however to law or the articles of
as an internet user’s electronic address that is incorporation.
created and chosen by the sender is unique for Furthermore, an electronic document can be
each address and itself has the character of a defined as the total of the written data in the
manual signature. The mechanical resemblance of magnetic disk of a personal computer. These data
the message in a document can be authorized as a are resembled in a readable format, after being
private document with a conclusive power against processed by the Central Processor Unit, either in
its editor (Articles 443, 444 and 445 of the Civil the computer’s screen or in an installed printer. An
Procedure Code). electronic document does not consist of most of
the elements of a (traditional) document under
Facts most legal systems, mainly because of the lack of
According to article 93 §1 of the Civil Code,1 stability during its incorporation into a substance
that has life endurance. According to common
“the members’ assembly is the union’s experience, for the operation of e-mail as a means
superior operation and decides for every case of communication over the internet, besides the
that is not the competence of other union connection with an Internet Service Provider, the
organs”. usage of a specific password is also required, in
order for each user to be identified in the system,
According to articles 95 and 96 of the Civil either as a sender or a receiver of electronic
Code,2 messages. This password is, in fact, the user’s
electronic address (e-mail), as it is originally chosen
“the authority for the convocation of the by the user himself in such a way that the specific
assembly belongs initially to the governance of combination of letters, numbers or symbols (the
the Union and, in some specially restricted password) only reflects the user that has chosen it
cases, to the minority of the members, after a and cannot be legally used by anyone else. The
previous Court’s authorization.” representation of the sender’s address in the
message makes his identity specific for the receiver
Where the members of a Union are invited to of the message, so he cannot be confused with
attend a General Assembly without abiding by the any other user of the same system, while his
legal requirements and by incompetent persons, congruency with the content of the message is
such a gathering cannot be considered as a indisputable. A crucial fact for electronic mail to
General Assembly; so, it is legally non-existent and come under the rules of articles 443 and 444 of
the decisions made during this assembly cannot be the Civil Procedure Code3 is to understand how it
regarded as decisions of a Union’s General works, because this is not simply an electronic
Assembly, and they are totally null and void. Their document that is saved in the software of a
invalidity can be invoked by anyone having a legal personal computer or of a document that its
interest and they cannot be considered invalid due representation is transferred by wireless or not
to article 101 of the Civil Code, which requires a (e.g. facsimile transmission). The sending of the

1
Article 93 of the Greek Civil Code: Union Assembly. “The members’ assembly is the union’s superior operation and decides
for every case that is not the competence of other union organs. The assembly, if the articles of incorporation do not differentiate,
especially elect the members of the governance, decides for the entrance or the rejection of a member, affirms the balance-sheet
(financial statement of a union), decides for the alteration of the union’s object, for the alteration of the articles of incorporation
and the dissolution of the union”.
2
Article 95 of the Greek Civil Code: Convocation. “The administration convokes the assembly in cases specially determined
by the articles of incorporation or every time that it is necessary for the interest of the union”.
Article 96 of the Greek Civil Code: “The assembly is convoked, if requested by as many members as determined in the articles
of incorporation. If there is no such prediction, the convocation can be requested by 1/5 of the members after an application,
where all matters that shall be discussed are specifically mentioned.
If this application is not accepted by the administration, a judge of first instance can authorize the applicants to convoke the
assembly and regulate everything concerning the assembly’s governance”.

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The burden of message leads to the congruency of the content of the message and of the sender, in such a way that the
message cannot be transferable if it is not accompanied by the sender’s electronic address and, of course, if
proof lies to there is no specific and existent receiver. The logical consequence is that in the sending of a message by way
of electronic mail, the sender’s will is identified with his electronic address so it can be technically possible for
whoever appeals the receiver to receive it and, of course, the form or the layout of the will’s mechanical representation in the
that defectiveness, document are of less importance. So, the determination of the electronic address in a unique manner from
the user himself and its representation in every sent electronic message is a proof of the editor’s identity and,
because the accordingly with what is defined for the traditional document in article 443 of the Civil Procedure Code. Its
mechanical representation in a document, according to article 444 paragraph 3 of the Civil Procedure Code,
function of the can be defined as a private document, with a conclusive power against its editor, because each user
electronic address is unique, that is chosen by the sender himself and it is unique, has the character of a
electronic mail acts manuscript signature, even though it does not have a signature’s traditional form. Thus, the attested copy of
to guarantee its an electronically sent message, which exists in the receiver’s hard disc, is a full proof that its contents come
from its editor-sender, according to what is defined in article 445 of the Civil Procedure Code.
credibility and any Moreover, the system’s operation, as it is above described, is possible to conceal the risk that the specific
message was sent by a person different than the one that the specific electronic address belongs to, by
possible using this address (by any means) without the user’s approval. The defectiveness of the sent message
directly refers to the traditional acts of forgery. The burden of proof lies to whoever appeals that
malfunction does defectiveness, because the function of the electronic mail acts to guarantee its credibility and any possible
not originate from malfunction does not originate from a system flaw but from a third party’s intervention. According to the
above-mentioned, article 457 paragraph 4 of the Civil Procedure Code4 is narrowed in the similarity
a system flaw but between the content of the personal computer hard disc and its mechanical representation, because an
electronic message is, for the receiver, an incoming message to his personal computer and, therefore, he
from a third can be liable for the validity of a copy of the message that he has received.5
In the discussion of the case, the plaintiff asked for the cancellation of the defendant’s company’s
party’s General Assembly’s decision due to infringement of law and of articles of incorporation. From the
intervention testimonies of the witnesses that testified in court and from the documents that the parties presented, the
following things were established: the defendant union was legally established in 1978. It is a typical union
of civil law and not a syndicate organisation, as the preservation and promotion of labour, financial,
insurance, social and syndicated interests of its members are not included beyond the goals of the union.
Some of the defendant’s union members received in their mailbox the following invitation, as an
attachment to the sent e-mail:

“Athens, 21 April 2003. Invitation for scheduled General Assembly. The Board of Directors invites the
Union’s members in the scheduled General Assembly that will take place in Athens, in the ……….. Hotel
in [….date…], 6.30pm. In case of non quorum the General Assembly will be repeated in the same place
in 6.30pm of the same day. The issues of the agenda are: 1. Election of the returning board. 2. Report of
the foregoing Board of Directors. 3. Report’s approbation. 4. Members’ of the Board of Directors release
from every liability. 5. Election of members of the Board of Directors and auditors. It is reminded that: 1.
According to article 18 of the articles of incorporation, the Assembly is represented by members that have
fulfilled their financial duties towards the Union for the year 2002. 2. According to article 20§5 of the
articles of incorporation, it is required for the existence of quorum that the present and financially settled
members outnumber the absent ones. 3. In case that a member is unable to be present at the General
Assembly, he/she can authorise in writing another member to be present and vote on his behalf. Anyone
that wishes to be elected is welcome to submit their candidacy until 6th May the latter, in fax number
[…….] or in the email […….]. The president of the Board of Directors.”

3
Article 443 Civil Procedure Code: Elements of private documents. “A private document has conclusive power only when
it has the manuscript signature of its editor or, instead of a signature, a mark that he (the editor) drew on the document and is
verified by a notary or any other public authority, which confirms that the mark is placed instead of the signature and that the
editor declared that he cannot sign”.
Article 444 Civil Procedure Code: Official books of merchants and other professionals. “The definition of private
documents also contains
a) the books that merchants and professionals are obliged to keep under commercial law or other statutes
b) the books that lawyers, notaries, doctors, pharmacists and nurses are obliged to keep under current statutes
c) photographic and cinematic representations, recordings and any other mechanical representation”.
4
Article 457 Civil Procedure Code, paragraph 4: “The burden of proof for the validity, if doubted, of photographic or
cinematic representations, recordings and any other mechanical representation, lies to anyone who presents and invokes them”.
5
This has also been held in decision No 1327/2001 Court of First Instance of Athens.

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This invitation was sent as an attached The problem of identity over

document by Mr. A.P., and not by the President of the internet
the Board of Directors, as it is required in article 20
In the traditional-physical transactional
paragraph 2 of the articles of incorporation. A.P.
environment, it is a simple process for someone to
was at that time the General Secretary of the
prove his identity. Additionally, the use of a
Board of Directors and not the Vice President, as The clearest
manuscript signature is crucial in order for someone
he had stated. The electronic message had no
other content, and the electronic address of the
to be bound to the content of a document. The expression of a
clearest expression of a signature, as determined by
sender was clearly shown. Based on the previous
common sense and knowledge, is when someone signature, as
comments, the representation of this address
writes his name on a document (a ‘manuscript
made the sender absolutely specific to all the
signature’). This action is thoroughly understood by
determined by
recipients of the invitation, which was downloaded
anyone; perhaps this is the reason why there has
to their personal computer’s hard disc. Moreover, common sense
seldom been an attempt to clarify the definition of
the representation of the electronic address is
the legal term ‘signature’ in any legislative measure.6 and knowledge, is
regarded as a proof of the editor’s identity,
Although there is not a unified legislation and
because it has the characteristics of his manuscript
despite few contrary court decisions, it is when someone
signature. Thus, the decision that was taken on 8
acceptable that signatures worldwide serve a
May 2003 during the General Assembly that was
similar purpose. As it is given in the US Uniform
writes his name on
convoked by the above-mentioned unauthorized
Commercial Code, the word ‘signed’ includes “any a document
person was totally invalid. Besides that, there was
symbol executed or adopted by a party with an
no proof that all the members of the Union intent to authenticate writing”7. So, a manuscript
received the above-mentioned electronic mail- signature that is, undeniably, legally effective in all
invitation, as it appears from the plaintiff jurisdictions, has three main purposes:8
members’ list, that many members did not have an
electronic address account and, consequently, it n to provide evidence of the identity of the
was not certain that they were aware of the person who signs
General Assembly’s convocation. n to show the signatory’s intention that the
As a result, the Court decided that the lawsuit signature is his signature
should be accepted and the General Assembly’s n to confirm that with signing he approves
decision should be declared invalid. and adopts the contents of the document.

[The appeal should be allowed] As far as the identity is concerned, when

dealing directly with others, it can be proven by
Comments comparing one signature that appears in a
The Court in the above-mentioned case held document with another signature; the person who
that the decisions taken in a Union’s General signed can recognise his own signature, as it is
Assembly were invalid because the General stated that each signature in the physical world is
Assembly was convoked by an unauthorized unique.9 That way, a signature can identify the
person via an e-mail message. Before signatory; it represents him to the world, not only
proceeding to the analysis of some crucial facts by revealing the name but also by the handwriting,
that this decision raises, we should first have a because handwriting can disclose things like the
general overview of the problem of identity in level of literacy, the age or even the character of
the internet. someone, according to graphologists.10

6
Chris Reed, ‘What is a signature’, 2000 (3) Journal of Information, Law and Technology paragraph 1.1.
7
U.C.C. Article 1-201(39).
8
Chris Reed, ‘Legally binding electronic documents: Digital signatures and authentication’, (2001) 35(1)
The International Lawyer 93.
9
Chris Reed, ‘Legally binding electronic documents: Digital signatures and authentication’, (2001) 35(1)
The International Lawyer 93.
10
The true meaning of identity and the status of personal names, though, vary from country to country, even within
the fields of European Union. In England, for example, a person does not have any form of official identification to
prove his legal name. In civil law countries identification seems to be a more formal procedure, which is why names
and signatures seem to have greater value as elements of identification. In Greece everyone, after a specific age,
when persons start to obtain their first legal and social rights (mainly in the early adolescence) is obliged to obtain,
under the authority and the responsibility of the police, an official identity card which contains almost every
element by which a person can be recognized (besides the name, things like date of birth, height, colour of eyes and
hair, nationality and blood type are necessary contents of it) and it is supposed to be carried in any time in case
needed to prove your identity. In Holland, a name can be changed by deposition in front of a judge and only in the
presence of a specific and serious reason, in contrast to England. See Lorna Brazell, Electronic Signatures Law and
Regulation (Sweet & Maxwell, 2004), 25-26.

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Probably the main function of a manuscript towards promoting a favourable business

signature is the expression of intent. Intention environment; this can only be achieved by
may vary, according to the type of the amplifying the confidence regarding the prospects
transaction; so, a signature might signify of e-commerce and building trust between the
One way or the approval, authorization or confirmation. One way contracting parties. A concrete legal base will
or the other, the act of affixing a signature to a enhance the concept of security, and this will
other, the act of document shows clearly the intention of the have positive effects in the financial market, and
signatory to be bound by the content of the for business and consumers as well; this has been
affixing a signed document and that makes it the reflected in many guiding principle documents of
cornerstone of an effective transaction.11 Hence, states and organisations.16
signature to a
signatures can offer security to transactions in The recognition of electronic signatures is a
document shows many ways. It is not only that they authenticate great step towards the accomplishment of these
the document and ensure its integrity; it is also objectives. There are many categories of
clearly the the fact that they bind the signatory to the terms electronic signatures, some of them really simple
of the document regardless the fact that he has and other more complex that require knowledge
intention of the not read it at all.12 An important feature of a of mathematics, algorithms and cryptography. But
valid signature is that it can provide evidence to even digital signatures, which are indeed difficult
signatory to be
reveal the signatory’s intention to adopt the to forge, can be easily misused.17
bound by the contents of the document as if they were his
own.13 In that way, repudiation becomes really The role of Certification
content of the hard for someone who has signed a document, Authorities
and the status and validity of a signature can only The solution to the problem of the verification
signed document be questioned in the case of forgery.14 of the identity of a party is given by the operation
So, the need for security is a necessary of Certification Authorities. A rather broad
and that makes it
condition for the growth of electronic definition of the term is given in the European
the cornerstone of communication, and failing to deal with it could Directive for electronic signatures, where
have a disastrous effect on the notion of a secure certification authorities are described as “entities
an effective and safe electronic environment. or legal or natural persons who issue certificates
Hence, it is not irrelevant that there has been a or provide other services related to electronic
transaction quite respectable amount of legislative activity in signatures”.18 In fact, these certificates are the
both regional and international level for digital equivalent of physical ways of identification
developing the legal framework of electronic documents and they are produced after a specific
commerce, and particularly in the field of process by Trusted Third Parties. This way, digital
electronic signatures law.15 Legislation is moving signatures are the future in every electronic

11
See reference to note 9.
12
L'Estrange v. Graucob, [1934] 2 K.B. 394.
13
Stephen Mason, Electronic Signatures in Law (LexisNexis Butterworths, 2003), 2.110 - 2.117, and Chris Reed, ‘What is a
signature’, 2000 (3) Journal of Information, Law and Technology, paragraph 3.1.3.
14
Baker & Hurst, The limits of trust: Cryptography, Governments and electronic commerce (The Hague, London, Boston:
Kluwer Law International, 1998) 246.
15
Lorna Brazell, Electronic Signatures Law and Regulation (Sweet & Maxwell, 2004) 1. See also Stephen Mason, Electronic
Signatures in Law (LexisNexis Butterworths, 2003), and Chapter 15, which is entitled “A comparison of electronic
signature laws”.
16
Characteristic examples are two documents that are some of the first attempts to regulate cyberspace: as far as US is
concerned, ‘A framework for global electronic commerce’ (by President William J. Clinton and Vice President Al
Gore Jr, Washington DC, 1997); in the field of European Union, ‘A European initiative in electronic commerce’ [Com
(97) 157, 15 April 1997].
17
Such an occasion is very likely to happen in internet auction sites, where the identity of the account holder is not
always easy to be verified. The infamous case of Andrew Tyler is suggestive. He was 13 years old when his mother,
Ingrid Tyler, had an account number in the popular on-line auctions site eBay. It was discovered that the boy could
not stop spending, as he had purchased items worth almost US$3m from the site using his mother’s account
number, without anyone realising it was not his mother. His mother finally found out when she received the bill for
her teenager's internet shopping spree. This incident can become educative from many aspects. Because the security
of the key is of major importance in the creation of digital signatures, which are based on public key cryptography,
there should be some type of protection policy based on new technology means that could ensure the safety of
private keys. For example, biometrics can be used for this purpose as well in order to effectively restrict access to
keys. Smart card systems are also a relatively new effort to protect private keys by requiring a fingerprint scan in
order to access the key. Other systems are and will be tried in the future in order to secure electronic environment
and lead it, through the use of digital signatures into commercial prosperity.
18
Directive 1999/93/EC of the European parliament and of the Council of 13 December 1999 on a community
framework for electronic signatures, OJ L13/12, 19.1.2000, Article 2(11). A similar definition is also given in the
UNCITRAL Model Law on electronic signatures (2001), Article 2(e), which defines a certification service provider as
‘a person that issues certificates and may provide other services related to electronic signatures’.

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communication and probably the only means to The characteristics of an authentication

help us ensure the integrity of commercial certificate are that:20
transactions in the cyber world.
Bearing all these things in mind, one could n to identify the certification authority
say that this interesting case is one of the first in n to identify the subscriber
Greek case law that raises a number of serious n to contain the subscriber’s public key
questions about electronic signatures. n it is signed with the certification authority’s
Nevertheless, the reasoning of the court lacks in private key.
a series of critical issues.
As to the legal status and recognition of
Whether the e-mail was electronic signatures, this is addressed in article 5
signed of the European Directive.21 According to the first
Probably the simplest form of electronic paragraph of the article, in addition to recital (20)
signature is the typing of a name, initials, surname and (21) as well, an advanced electronic signature
or even a pseudonym on to an electronic should be treated as legally equivalent to a
document; as long as it identifies the signatory, handwritten signature if the requirements for a
this typing mechanism would be sufficient to be handwritten signature are fulfilled; moreover, it
characterised as a signature.19 Even if it can be underlines the fact that electronic signatures have
legally recognised as an electronic signature, to be used as evidence in legal proceedings.22
though, it still has almost no practical value. This is To sum up, one could notice that the Court
exactly the point in the above-mentioned case. correctly reached the conclusion that the General
Given the fact that anybody can sign with any Assembly’s decision should be declared invalid,
possible name at the bottom of an e-mail, it is although this conclusion was based on a rather
apparent that nobody can trust this type of simplified and, consequently, false reasoning.
signature for an important transaction, since there
is no verification that the name used for signing © Report and comments by Michael
really exists or an authentication that the content Rachavelias, correspondent for Greece
of the message is in agreement with the
willingness of the person with that name. The
same thing happens with the e-mail address itself,
as the users can easily alter their real name and
use any other name, fake or pseudonym,
pretending that this other name is the sender.
Therefore, a method of verification of the sender’s
identity is more than necessary.

Security issues: The role of

Certification Service Providers
As stated before, the use of Certificate Service
Providers and the technical methods used by them
in order to ensure security and integrity in on-line
transactions are the most significant means
available nowadays that can guarantee the identity
of a party and validate the content of an electronic
message. This is a very important fact of electronic
transactions and, unfortunately, the Court’s
decision seems to neglect it in its reasoning.

19
Stephen Mason, Electronic Signatures in Law (LexisNexis Butterworths, 2003) 80.
20
Stephen Mason, ‘Electronic Signatures: The technical and legal ramifications’, (2000) 10(5) Computers and Law, 39.
21
Directive 1999/93/EC on a community framework for electronic signatures, OJ L13/12, 19.1.2000.
22
The decision in the case of AS Valga Kulmutusvagunite Depoo (in bankruptcy), Administrative Matter No 2-
3/466/03, of the Administrative Chamber of Tallinn Circuit Court, 12 June 2003, in Estonia, underlines that digitally
signed documents must be considered equivalent to handwritten in court proceedings. See translation into English
and commentary by Viive Näslund ‘Case Report’, e-Signature Law Journal, Volume 1, Number 1, 35 – 39.

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