Brief remarks on the legislative project.
by Andrei Cosma, Managing Associate and Geanina Oprița, Associate
In the current context that has determined the acceleration of the digitization process and the increased use of online services, the Romanian Digitization Authority (RDA) aims to regulate a procedure for identifying a person, remotely, using video means. In this regard, the draft of the Methodological Norms concerning the regulation, recognition, approval or acceptance of the procedure for remote identifying of a person using video means (Methodological Norms draft) was initiated.
This is based on Regulation (EU) no. 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (eIDAS Regulation). According to the Approval Report published on the RDA website, the draft Methodological Norms aims to establish the general framework on the use of video means for remotely identifying a person, regulating technical requirements, and establishing obligations and responsibilities for entities participating in this procedure.
RDA’s initiative initially materialized through a draft Emergency Ordinance on the remote identification of a person using video means, subject to public consultation earlier this year. Although this legislative proposal has been the subject of criticism in terms of deficient legislative technique, RDA has reiterated in the draft Methodological Norms, with some exceptions, the original proposal.
Considering the continuous interest of RDA for establishing a procedure for remotely identifying a person using video means, we propose the analysis of the legislative project with emphasis on the provisions that may be relevant from the perspective of its implications in the gambling sector.
Scope of the remote person identification procedure using video means
The notion of remote person identification by video means is defined as “the process of legitimizing and verifying the identity of the natural person by specialized personnel, based on the documents submitted, images captured and/or information communicated in real time by the individual, using video means”. The draft Methodological Norms aims to regulate the possibility of using this means of identification in four hypotheses, of which relevant are:
- remote identification of customers using video means by payment service provider (entity authorized to provide payment services in Romania, namely credit institutions, payment institutions and electronic money institutions) for the provision of payment instruments with remote access or other financial-banking products;
- remote identification of the person by economic operators (including gambling operators) by a third party verifying the identity of the person using video means. The latter is defined as a legal person in a contractual relationship with an economic operator with the purpose of providing remote identification services of the person using video means.
Requirements for implementing the procedure of remote identification of a person using video means
According to art. 8 of the draft Methodological Norms, the payment service provider that wishes to use video means to remotely identify customers, has the obligation to notify RDA in this regard 30 days in advance. The notification must be accompanied by a series of documents aimed at demonstrating that the payment service provider has the technically necessary means and the means to minimize the risks associated with this method of identification. The draft Methodological Norms mentions the mere information of the RDA, without providing for the need to obtain its approval. Thus, the supervisory and control role conferred on RDA seems to manifest itself only after the moment when the payment service provider starts using this means of identification.
Art. 10 of the draft Methodological Norms sets out that economic operators (other than trust service providers and payment service providers) wishing to use video means for remote identification will have the obligation to use the services provided by third parties under an agreement. According to the same provisions, the agreement will contain clauses regarding the forms of compensation of the injured persons, in case of potential damage. However, no details are provided regarding the actions that may generate the damage in question, its nature or the persons entitled to compensation.
RDA is also responsible for managing the list of third parties that can provide the identification services. In order to be included on this list, third parties will be required to submit an application for registration to which they will attach several documents, similar to payment service providers. RDA’s competence to perform verifications appears to be extended in this case not only to third parties that have already registered on the list, but also to those in the process of registration.
For both hypotheses analysed, the draft Methodological Norms provides a two-phase procedure regarding the remote identification of a person using video means: verification of identity documents and verification of the identity of the person completing the procedure with the information in the documents provided.
The following documents can be used in the identification process: identity card, passport, single permit/EU blue card. There are also laid out requirements on the communication quality, which must be adequate to allow the clear identification of the security features and elements of the identity document. The identification must be performed in real time and without interruptions/breaks, only by certified personnel that have the obligation to attend annual professional training courses.
In our view, RDA’s initiative to establish a procedure enabling the remote identification of a person using video means is praiseworthy, but in order for it to actually facilitate the activity of economic operators, a much clearer/more detailed regulation is required. Taking into consideration that it is a novel procedure in the national legislation, the definition of the concepts and the procedure to be applied as precisely as possible are essential elements in achieving RDA’s purpose.