Assinaturas eletrônicas no Brasil

The main laws and regulations that govern the use of electronic signatures and digital signatures in Brazil include:

1. The Brazilian Civil Code: Article 104, III of the Brazilian Civil Code establishes the freedom of contract forms, meaning that a legal agreement is valid if it is in a form either prescribed by law or not explicitly prohibited by law.
2. The Provisional Executive Act 2.200-2 (“MP 2200”): The Provisional Executive Act of August 24, 2001 provides for the validity of general electronic agreements signed digitally.

Per the Brazilian Civil Code, an electronically signed agreement must have:

1. a capable agent;
2. a licit, possible and determined or determinable object; and
3. a form that is prescribed or not prohibited by law.

Brazil maintains its own public key infrastructure (PKI) for digital certificates called Infraestrutura de Chaves Públicas Brasileira (ICP-Brasil). MP 2200 guarantees the legal validity of digitally signed documents in the following situations:

1. documents produced within ICP-Brasil; and
2. documents produced outside ICP-Brasil if minimum parameters for evidencing the authorship and integrity are met.

For documents produced outside ICP-Brasil, the validity parameters of authorship and integrity are met when: (1) proof of the signer identification is provided; and (2) proof of the integrity of the signed document is provided, subject to the acceptance of the authentication method by all parties that are signing the document.

Electronic signatures that comply with the Brazilian Civil Code and MP 2200 are considered to have the same legal effect as a handwritten signature. Additionally, digital signatures backed by ICP-Brasil are granted a legal presumption that the signature belongs to the person who signed and that the content of the electronic document remains unchanged. In contrast, electronic signatures created outside of ICP-Brasil do not carry this legal presumption and the authorship and integrity of the document must be proven.

Exclusions

Electronic contracts cannot be used where Brazilian law requires specific formal procedures for a particular activity. For example, contracts constituting, transferring, modifying or waiving rights to real estate with a value higher than thirty times the minimum monthly salary in Brazil must be in the form of a public deed.

Recent changes as a result of COVID-19 crisis (April 2020)

Provisional Measure No. 951/2020 (“MP No. 951/2020”), published on April 15, 2020, changed the procedure for issuing digital certificates within the scope of the ICP-Brasil, thereby authorizing the issuance of digital certificates remotely, without the need for the applicant to be present at the establishments accredited to issue such certificates (Registration Authorities).

MP 951/2020 revoked Article 7 of MP 2,200-2, which required the Registry Authorities to act in person with the applicants in order to validate their identity. With MP 951/2020, Registration Authorities can issue electronic certificates remotely, provided that they adopt other means of verification that guarantee a level of security equivalent to the face-to-face verification, observing the applicable ICP-Brasil’s technical standards.

The amendment follows the legislative changes resulting from the COVID-19 pandemic, which led to social distancing and the determination to close establishments in different locations of the country, so as to avoid presential interactions. This change is crucial to facilitate the issuance of ICP-Brasil certificates remotely, thereby enabling companies to migrate to ICP-Brasil-backed electronic signatures in order to remain carrying out more complex business transactions.

However, further regulation is expected in order to define the procedures to enable the Registration Authorities to carry out remote identity verification to ensure safe and reliable issuance of ICP-Brasil digital certificates.

External Resources

helpx.adobe.com

https://lefosse.com/

https://www.lexology.com/

https://uk.practicallaw.thomsonreuters.com/