Martial law changes a lot. Quite often it is about various transitional periods, temporary reliefs, relaxing requirements, exceptions, and suspensions. It is also about many additional legislative efforts in the fight against the russian military and propaganda machine. These directions may be unrelated, but both are equally important. Same as temporary reliefs for e-signatures and e-seals introduced for the martial law's duration on the one hand and additional power for e-communications authorities to fight against the russian propaganda dissemination on the other hand, which we discuss in our TMC practice update.
E-signatures during martial law
The Ukrainian Government has taken measures to ensure the uninterrupted operation of the electronic trust services system (e-signatures and e-seals system) during martial law. It means the following for Ukrainian businesses, including subsidiaries, affiliated entities, and representative offices of foreign entities:
- no personal presence of the relevant representative of the business entity is required to renew the validity of (create a new certificate for) e-signature and e-seal. Such certificates can be created automatically by an authorised provider of electronic trusted services (the "Authorised Provider").
The regulation is in effect during martial law and one month thereafter. Notably, the temporary relief is not a panacea because of the deadlines established for the certificate validity (e.g., a total term of validity of the previous certificate and new certificate created automatically by the Authorised Provider should not exceed three years).
- switch to extensive use of qualified electronic signatures and e-seals with storage of keys on protected data carriers (e.g., tokens, CloudKey, Smart-ID, smart cards) was planned to start on 31 May 2022. Thanks to the active position of the business community in Ukraine, especially the European Business Association, it was postponed for the martial law's duration and six months thereafter.
It virtually means that business entities can continue to use advanced e-signatures for (i) e-interaction with individuals and legal entities (i.e., for electronic workflows, ensuring that e-signatures and e-seals are legitimate means of executing documents) and (ii) proper authentication in the state systems, including critical information infrastructure facilities (e.g., for tax reporting, filing applications with respect to registrable intellectual property, public procurement submissions at Prozzoro web-portal).
This temporary relief does not cover transactions that require a notary signature or that are subject to state registration as well as cases involving high risk to information security. High risk to information security is defined by the owner of the relevant information and/or information and communication systems, taking into account the restrictions stipulated by the Law of Ukraine "On Electronic Trusted Services".
Notably, only those data carriers are treated protected in relation to which a positive conclusion of the State Service of Special Communications and Information Protection of Ukraine is in place.
To avoid business interruption risks due to improper e-signatures or e-seals, it is still advisable for businesses to voluntarily switch to the use of qualified e-signatures and e-seals with storage of keys on protected data carriers as soon as practicable.
Refusal to Block Dissemination of russian Propaganda in Ukraine can Now Lead to Severe Legal Consequences for Suppliers of E-Communications Services
As of 27 May 2022, when amendments to the Law of Ukraine "On Electronic Communications" (the "E-Communications Law") have entered into force, the National Centre for Operations and Technology Management of Telecommunications Networks (the "National Centre") at the State Service of Special Communications and Information Protection of Ukraine is granted with more authority to fight against the russian propaganda dissemination in Ukraine.
The National Centre is an authority that ensures the management and stability of electronic communications networks of all suppliers of electronic communications networks and/or services (the "e-comms services suppliers") in a state of emergency and martial law.
According to the recent amendments to the E-Communications Law:
- the National Centre is authorised to issue binding orders for all e-comms services suppliers during martial law.
- in case e-comms services supplier fails to comply with the National Centre binding order, the National Centre can request the National Commission for State Regulation of Electronic Communications, Radio Frequency Spectrum and Provision of Postal Services (the "National Commission") to exclude such e-comms services supplier from the Register of Suppliers of Electronic Communications Networks and Services (the "Register"). The decision to exclude is subject to approval by the Ukrainian Government.
When considering a request for exclusion of e-comms services supplier from the Register, the National Commission must take into account the necessity to continue the provision of e-communications services to consumers though and by other e-comms services suppliers.
- Once excluded, it triggers termination of information exchange with the networks of an excluded e-comms services suppliers. Moreover, excluded e-comms services supplier cannot be included in the Register within a year from the exclusion.
Importantly, starting from 27 May 2022, exclusion of e-comms services supplier from the Register is also a good reason for annulment of license for the use of radio frequency spectrum (Art. 54 of the E-Communications Law) and/or permission to use the numbering resource or part thereof (Art. 78 of the E-Communications Law).
Information contained in this TMC update is for general information purposes only, does not constitute legal or other professional advice, and should not be relied upon as a substitute for specific professional advice tailored to particular circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.