Commercial contracts signed remotely, minutes of shareholder meetings, amendments, purchase orders: the dematerialisation of documents is now part of daily life for Moroccan businesses. One question is decisive in a dispute: what is the legal value of an electronic signature? Law No. 43-20 on trust services for electronic transactions, promulgated by Dahir No. 1-20-100 of 16 Joumada I 1442 (31 December 2020) and published in Bulletin Officiel No. 6970 of 18 March 2021, provides a structured framework that complements Law No. 53-05 on the electronic exchange of legal data.
A framework in force since 2023
Law 43-20 was to enter into force upon publication of its implementing texts. According to the FAQ published by the Directorate General of Information Systems Security (DGSSI), the law has applied since 13 July 2023, following publication of Decree No. 2-22-687. Law 53-05 has not been repealed in its entirety: its preliminary chapter and Title II are repealed (Article 83), while Title I, which introduced the electronic signature into the Code of Obligations and Contracts (DOC), remains applicable.
Three levels of electronic signature
Article 4 distinguishes between simple, advanced and qualified electronic signatures. This hierarchy determines the evidentiary weight of the document.
| Level | Characteristics | Evidentiary value |
|---|---|---|
| Simple | Reliable identification process linking the signature to the document | Cannot be refused in court solely because it is electronic; the reliability of the process must be demonstrated |
| Advanced (Art. 5) | Unique to the signatory, able to identify them, created under their sole control, based on a certificate and making any later change to the data detectable | Cannot be refused in court solely because it is not qualified (Art. 7) |
| Qualified (Art. 6) | Advanced signature created with a qualified signature creation device (Art. 8) and based on a qualified certificate (Art. 9) | Presumed reliable until proven otherwise, with an effect comparable to a handwritten signature |
According to the DGSSI, a mere scanned image of a handwritten signature has no particular legal value as such. An electronic signature should also not be confused with an electronic seal: the latter is intended for legal entities, the signature for natural persons.
Beyond signatures: other trust services
The law also regulates other services useful to businesses:
- The electronic seal (Articles 13 to 16), simple, advanced or qualified; a qualified seal benefits from a presumption of data integrity and accuracy of origin.
- Electronic timestamping (Articles 22 to 25): a qualified timestamp creates a presumption as to the accuracy of the date, time and data integrity.
- Electronic registered delivery (Articles 27 to 29): the qualified service, provided by an accredited provider, benefits from a presumption as to data integrity and the dates of sending and receipt.
- Website authentication (Articles 30 and 31), by means of a qualified certificate.
Accredited providers and supervisory authority
Qualified services are reserved for accredited providers (Article 32). Accreditation requires, among other things, that the provider be a company governed by Moroccan law and hold insurance (Article 33). Providers of non-qualified services must file a prior declaration (Article 35). The national authority is responsible for accreditation, oversight and keeping a public register (Articles 52 and 53). According to the DGSSI FAQ, the DGSSI performs this role, audits accredited providers at least every three years and certifies qualified signature creation devices.
Criminal penalties
The law provides for a deterrent penalty regime, including:
- providing qualified services without accreditation: 3 months to 1 year of imprisonment and a fine of MAD 100,000 to 500,000 (Article 62);
- non-qualified services without prior declaration: fine of MAD 50,000 to 100,000 (Article 63);
- false declarations to obtain a service: 1 to 5 years of imprisonment and a fine of MAD 100,000 to 500,000 (Article 65);
- unlawful use of another person’s signature or seal creation data: 1 to 5 years of imprisonment and a fine of MAD 10,000 to 100,000 (Article 68).
Fines are doubled for legal entities and for repeat offences (Articles 73 and 74).
Documents subject to specific requirements
Law 43-20 amends Article 2-1 of the DOC, which determines the documents that cannot be drawn up in electronic form. In addition, its Article 78 requires an advanced or qualified electronic signature or seal for certain security instruments of credit institutions. Before dematerialising a document (security interests, instruments relating to real rights, family-law documents, etc.), the applicable text should therefore be checked.
Practical points of vigilance
- Choose the signature level according to what is at stake: a simple signature may suffice for a low-value document, but you bear the burden of proving the reliability of the process; prefer an advanced or even qualified signature for high-stakes contracts.
- Check that the provider is accredited when you seek the effect of a qualified signature.
- Keep the evidence file: certificate, audit trail, timestamp, signed version of the document.
- Include in your framework agreements a clause recognising the validity of electronic signatures and specifying the level chosen.
- Review certificates inherited from Law 53-05: transitional provisions (Articles 80 to 82) govern their validity.
- Secure internal governance: signing authorities, key and access management.
Conclusion
Law 43-20 gives businesses a reliable framework for contracting remotely, provided the signature level is matched to the nature of the document and providers with verified status are used. This article presents a general overview and does not constitute legal advice. The Westfield law firm assists businesses in securing their contracts and dematerialisation processes: please do not hesitate to contact us.