By Rodrigo Trindade
PLBrasil Group | 12/10/2020

The electronic signature can be used by individuals and/or legal entities and consists on the subscription of documents through computational means, used to validate the integrity and authenticity of both the content of the documents and the signatures of their signatories. Electronic signatures are generally used in low-complexity documents which, by law, do not require any formality. In other words, when there is no need to prove, by a specific means defined by law, that a certain signature was executed by the person who is said to be.

Get to know some types of electronic signatures:

• Digitalized signature – reproduction of the handwritten signature as an image;
• Digital Accept – when the action of “Clicking on an acceptance button” is done;
• Digital Password – widely used in banking accesses, through filling in the user’s login and password;
• Token validation;
• IP (Internet Protocol) recognition; and
• Biometric recognition.

When the signature is made through a digital certificate (technology that uses data encryption, ensuring authenticity, confidentiality, integrity and non-repudiation of electronic information), it shall be classified as a digital signature, since it uses asymmetric encryption that is composed of a pair of cryptographic keys (public and private) that complement each other, being considered a kind of electronic signature. In Brazil, the digital signature was introduced and is regulated by the Provisional Measure (“Medida Provisória”) 2.200-2 of August 24, 2001 (“MP 2.200/01”).

Does the electronic signature have legal validity?

Article 107 of the Civil Code specifies the principle of freedom of forms, which determines that the form of expression of will is free, except in the cases required by law. Therefore, as long as there is agreement between the parties, regardless of the form of signature, it has legal validity.

The aforementioned Provisional Measure (“Medida Provisória”) MP 2.200-2 certifies in its article 1 the legal validity of signatures made by electronic means, in these terms:

“Art. 1st The Brazilian Public Key Infrastructure (“Infra-Estrutura de Chaves Públicas Brasileira”) – ICP-Brasil is hereby established to guarantee the authenticity, integrity and legal validity of documents in electronic form, support applications and enabled applications that use digital certificates, as well as the execution of secure electronic transactions.”

In addition, the new law 14.063 of September 23, 2020, which deals with signatures in the public area, defined 3 types of valid signatures: simple, advanced and qualified. In summary, simple and advanced signatures are those that we call an electronic signature, while the qualified signature, as it mandatorily employs the ICP Brasil digital certificate, is referred to as digital signature.

When to sign electronically?

We always recommend to evaluate the peculiarity of each operation; however, in general, the electronic signature can be used when, for example:

• It is a low-risk document;
• They are internal documents that need a simple approval, acceptance or agreement with an adhesion contract and others;
• They are low value contracts; and
• They are documents related to the Human Resources area, for acceptance between the company and its employees.