By Gustavo Chaves Barcellos and Layon Lopes*
In Brazil, a digital signature and an electronic signature may appear to be the same thing, but they are not. A digital signature has to have three characteristics:
- Authenticity: Basically, consists of the possibility of legal verification regarding the author of the document, obtained through cryptography of algorithms.
- Integrity: It is the characteristic related to the proof that the document digitally signed wasn’t altered.
- Tempestivity: Performs the compatibility check between the means and the technology applied. The certifying entity may become responsible for attesting to the date and time at which the document was signed.
The competent authority to verify the validity of digitally signed documents is the Brazilian Public Key Infrastructure (ICP-Brasil). The ICP-Brasil is responsible for making the digital identification of individuals and companies. Therefore, a digital signature carried out without an ICP-Brasil Digital Certificate does not have the same legal validity as a notarization.
On the other hand, the electronic signature uses an electronic tool to identify and validate the signatory. It is accepted and used in almost all types of electronic documents, from contracts to forms.
However, as a rule, the electronic signature does not require ICP-Brasil Digital Certificate.
Therefore, it does not attribute the same legal validity compared to registration in a notary office. So, when a signature is required to be registered with a public notary, an electronic signature cannot be used, in this case, a digital signature must be applied.
Contrary to what most people think, digital and electronic signatures are not equivalent, as they have different characteristics and purposes.
A digital signature, like the e-CPF (Brazilian digital social security number), is a form of signature that uses the ICP-Brasil Digital Certificate to prove the firm’s authorship. It is equivalent to the signature in one’s own handwriting and was created to give credibility to the virtual document and, therefore, aims to ensure the authorship of the document, protect the integrity of the data and guarantee the non-repudiation (the signatory cannot deny its authorship).
The Brazilian Judiciary Power has recognized the legal and notary validity of signatures such as the e-CPF as long as they are in accordance with the legal provisions and with the determinations of the competent authorities.
So, how do you know in which situations to use a digital signature, and in which situations to use an electronic signature?
To answer this question, it is necessary to analyze the document to be signed and its legal requirements.
For example, commercial contracts can be signed through electronic signature platforms, which is a common practice in Brazil and fully valid, since, as a rule, there is no legal prohibition to the contrary.
However, employment contracts and corporate acts, as they demand certain legal requirements, must be digitally signed, meeting the legal requisite relating to the formalization of these legal transactions.
In other words, when required by Law, or it is legally necessary, to attribute public faith to the document, it is necessary to use a digital signature certified by ICP-Brasil. When there is no such need, electronic signature platforms can be used in order to speed up the signature process.
*Layon Lopes is the CEO of Silva | Lopes and Gustavo Chaves Barcellos is a member of the Silva | Lopes team.