Bill no. 1093 amending various digital provisions (transforming (Draft Law no. 255)

Government Bill no. 1093 amending various digital provisions (2024-04, 14 May 2024) tabled on 22 May 2024, follows on from Parliamentary Draft Law no. 255 adopted by the National Council on 7 December 2022.

* * *

SUMMARY

Bill no. 1093:

• supplements Law no. 1.383 of 2 August 2011 for a Digital Principality (previously revised in 2019): trust services, including a framework for electronic attestations of attributes; electronic contracts and transactions; online technical service providers; exchanges of information between public sector bodies and with their users, including the communication of administrative documents; ensuring that certain individual administrative acts are de-indexed by search engines; data policy.
• inserts in Law no. 1.483 of 17 December 2019 on digital identity the digital identity wallet (an application for identifying oneself digitally, storing and managing identification data and official documents in digital format, such as driving licences, diplomas and medical prescriptions).
• amends the Civil Code to enable all private deeds relating to personal or real sureties, whether civil or commercial, to be drawn up and stored in electronic form.
• strengthens the criminal provisions concerning operators of vital importance (OIV).
• contains marginal tax provisions (payment of duties).

The Act will be supplemented by sovereign ordinance and ministerial order.

* * *

The foundations of the reform

The Government amended the initial parliamentary text, which was essentially focused on issues of authentication linked to digital identity, in line with the wish expressed by the Parliament "to arrive, at the end of the legislative process, at a modern and innovative text that meets the needs of practice and is as close as possible to developments observed in the digital field in the broad sense" (Report on draft law no. 255, pp. 1-2).

The (retained) title of draft law no. 255 "on various digital provisions" was intended to be "sufficiently broad to allow the Government, in the context of a possible transformation into a bill, to seize the opportunity of this text to develop our legislation in the light of new perspectives that may emerge after the submission and vote of this Bill" (Explanatory Memorandum to Bill 255, p. 3).

The Explanatory Memorandum places Bill no. 1093 in the "wake" of the many developments in the digital field, both in Monaco (trust service, digital economy, digital identity, development of digital administration) and in the European Union : referring to the revision of Regulation (EU) eIDAS No 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and Regulation (EU) on artificial intelligence (AI ACT), Regulation (EU) 2022/868 on European data governance (DGA).

* * *

IN DETAIL

¤ Amendments to Law no. 1.383 for a Digital Principality (L.):

• New Trust Services: "issue of electronic attestations of attributes", "validation of electronic attestations of attributes", "preservation of electronic signatures, electronic stamps, electronic signature certificates or electronic stamp certificates", "management of remote electronic signature creation devices or remote electronic stamp creation devices", "recording of electronic data in an electronic register". (art. 1, 38-1 L.)
• New definitions relating to trust services: "attribute", "electronic attribute attestation", "qualified electronic attribute attestation", "electronic attribute attestation issued by or on behalf of a public sector body responsible for an authentic source", "strong user authentication", "weak authentication avatar", "strong user authentication", "low authentication avatar", "substantial authentication avatar", "high authentication avatar", "qualified remote electronic signature creation device", "qualified remote electronic signature creation device", "electronic registry oracle", "Relying Party", "product", "electronic registry", "qualified electronic registry". (art. 1. L.)
• Affirmation of the principle that it is not prohibited to use pseudonyms in electronic transactions (to date, only in the use of electronic signatures). Inspired by the eIDAS Regulation (art. 5). (new art. 1-3 L.)
• Procedures for accessing and using the cancellation function for contracts concluded electronically (new Article 18 L.).
• Reinforcement of the liability of technical service providers (art. 22 L.)
• Electronic registers (blockchain in practice): legal effects and admissibility as evidence; regime for "qualified electronic registers". (art. 28-5, 28-6 L.)
• Providers of an online public communication service: recast of the provisions (inspired by art. 6 of Regulation (EU) DSA). (art. 29, 30 L.)
• Persons whose activity is to provide access to online public communication services: similarly, recast provisions (Art. 31 L.)
• Reinforcement of the measures to be implemented by technical service providers with regard to the dissemination of content relating to offences seriously prejudicial to the integrity of persons or provoking the commission of acts of terrorism and their apology, and other unlawful activities. (art. 32 L.)
• Creation of a legal framework for electronic attribute certificates. (Art. 38-2 and 38-3 L.)
• Facilitation of exchanges of information between public sector bodies and with their users, new provisions on the communication of administrative documents. (art. 50 L.)
• Publication of certain categories of individual acts (in particular relating to the status and nationality of persons, determined by sovereign ordinance) under conditions guaranteeing that they are not subject to indexing by search engines. See our related publication on the recommendations of the CCIN. (new art. 53-1 L.)
• Establishment of a data policy, including the definition of "reference data", the re-use of public information subject to licence clauses or a fee, and the creation of an interministerial portal designed to bring together and make freely available all the public information of public sector bodies. In line with Regulation (EU) DGA. (new articles 55-1 to 55-7, 56-1 to 56-4 L.)

Note:

• The Bill does not include "remote identity verification services" and "remote identity verification service providers" (PVID), governed by Ministerial Order 2024-164 of 22 March 2024 (conditions for qualification of PVIDs by the Director of the Monegasque Digital Security Agency (AMSN), including compliance with the requirements of the French ANSSI reference framework).
• The Bill does not include the extension of the definition of "data intermediation service" to include personal data, as envisaged by draft law no. 255, on the grounds that this raises "the question of the relationship between data sharing on the one hand, and the protection of this data on the other", and "could lead to the creation of a fully-fledged dedicated regime with the establishment of a special authority along the lines of that provided for in European regulations", which should be "given further consideration". (Explanatory memorandum, p. 6)

¤ Amendments to Law no. 1.483 on Digital Identity (L.):

• New definitions: "Trust mark [label de confiance] for the digital identity wallet", "Identity matching", "Offline mode", "Relying Party", "Digital identity portfolio", "User". (art. 1 L.)
• Creation of a digital identity wallet provided by the State or a private provider recognised by it "to guarantee any natural or legal person secure, reliable, continuous and cross-border access to public and private services, while exercising full control over their data", with a description of its functionalities and the obligations of the various players (digital identity wallet provider, users, user parties). (new art. 18-1 to 18-11 L.)

¤ Amendment of Law 1.435 of 8 November 2016 on combating technological crime (L.) :

• Increased penalties for non-compliance with security rules by operators of vital importance.(OIV) (art. 29 L.)

¤ Amendment to Law no. 564 of 15 June 1952 authorising administrative departments to charge fees for the issue of certain documents or the completion of certain formalities (L.) :

• Payment of duties may be evidenced by "payment of a sum" (removal of "affixing of movable stamps"). (art. 21 L.)
• Payment of the fixed fee may be made via an online service provided by the State or by purchasing a tax stamp (removal of "affixing of mobile tax stamps"). (art. 22 L.)

¤ Amendments to the Civil Code

• Removal of the exception whereby private documents relating to personal or real sureties, of a civil or commercial nature, entered into by persons acting for purposes that do not fall within the scope of their professional or commercial activity, may not be drawn up and stored in electronic form. Naturally, securities in electronic form must comply with the formalities specific to each type, in addition to the provisions of articles 1163-1, 1163-3 and 1164 of the Civil Code. Inspired by the recent reform of art. 1175 of the French Civil Code (repeal of 2°) of art. 963-2 CCiv.)

* * *