eSignature Legality in Brazil

E-Signature Legality Summary

Provisional Measure 2,200-2/2001 is the main statute regarding the validity of electronic signatures in Brazil. In addition to establishing the legal regime of digital certificates in Brazil, creating the ICP-Brasil and defining the attributions of the Brazilian Institute of Information Technology – ITI, MP 2,200-2/2001 further establishes the concepts of electronic signature (art. 10, §2) and digital signatures (art. 10, §1), as well as the requirements for their validity.

Also, electronically signed documents are generally accepted as valid and enforceable under the Brazilian civil legislation. The Brazilian Civil Code provides that except in specific cases set forth in law, a declaration of will does not rely on any special form (art. 107) – thus allowing for the use of electronic signatures. Similarly, Law 13,874/2019 (the Economic Freedom Act) establishes that private documents executed by any means that evidence its authenticity and integrity are valid, as long as they are agreed upon by the parties or accepted by the person to whom it is opposed (art. 18). 

Recently, Law 14,063/2020 (as regulated by Decree 10,543/2020, in the case of the Federal Public Administration) has established a specific legal regime for the use of electronic signatures in interactions with public sector entities and in public health-related matters. In doing so, Law 14,063/2020 reclassified the electronic signatures in 3 types – standard (SES), advanced (AES) and qualifies (QES) –, thus clearly inspired by Regulation (EU) 910/2014 of the European Parliament and Counsel, which regulates electronic identification and trust services for electronic transactions in the European internal market (eIDAS Regulation). It is important to emphasize that Law 14,063/2020 does not revoke or replaces MP 2,200-2/2001, and in general, its concepts and requirements has its application limited to interactions with public sector entities (i.e., internal interaction of bodies and entities of the Public Administration, interactions between public sector entities and private individuals and entities, and between public sector entities) and to public health-related matters (such as electronically-issued medical prescriptions for controlled drugs and medical certificates).

Notable Changes in E-Signature Law Since 2020

None. 

Types of Permitted Electronic Signature

MP 2,200-2/2001 provides for 2 types of signature:

• Electronic Signature: Signature generated by any means that evidences the authenticity and integrity of the electronic document (including digital certificates not issued under ICP-Brasil), provided that they are admitted by the parties as valid or accepted by the person to whom it is opposed.

• Digital Signature: Signature generated in association with the use of an ICP-Brasil digital certificate.

In its turn, Law 14,063/2020, establishes 3 different types of electronic signature:

• Simple Electronic Signature: Any electronic signature that allows the identification of its signatory, and that attaches or associates data to other data in electronic format of the signatory. It is equivalent to the electronic signature under MP 2,200-2/2001.

• Advanced Electronic Signature: An electronic signature that uses any other means of proving the authorship and integrity of documents in electronic form (including digital certificates not issued under ICP-Brasil), provided that they are admitted by the parties as valid or accepted by the person to whom the document is opposed, with the following characteristics: (a) the signature must be unequivocally associated with the signatory; (b) the generation of the electronic signature occurs by means of data that the signatory operating under its exclusive control, with high level of trust; and (c) the signature is related to the data associated with it in such a way that any further modification is detectable.

• Qualified Electronic Signature:  An electronic signature generated in association with the use of an ICP-Brasil digital certificate. In essence, it is the same digital signature provided in MP 2,200-2/2001.

Also, as established in Law 14,063/2020, (a) the use of advanced electronic signatures is admitted in cases where standard electronic signatures could be used (art. 5, §1, I, “a”); and (b) likewise, the use of qualified electronic signatures is admitted for the cases where standard or advanced electronic signatures could be used (art. 5, §1, III). It further establishes that in case of conflict between existing laws and regulations or between regulations issued by different entities, the use of qualified electronic signatures shall prevail (art. 5, §5).

Documents That May be Signed Electronically

Generally, agreements and other documents in Brazil can be provided and signed electronically so long as (a) the means used are capable of generating electronic signatures that meet the requirements of authenticity and integrity established in the legislation; (b) the parties agree to use an electronic form (it can be express or implied); and (c) the law does not otherwise preclude the use of electronic signatures and records.

In the public sector related agreements and documents, the use of electronic signatures is permitted, provided that advanced electronic signature and qualified electronic signatures are generally required in most cases, such as (among other cases):

• Acts signed by the President, Branch Heads, Ministers of State, or by authorized persons of a Branch, or of an Constitutionally autonomous body of a federative entity;

• Issuance of electronic invoices (except for natural persons or Individual Microentrepreneurs, which may be optional);

• Real estate transfer and registration;

• Minutes of assemblies, conventions and meetings of legal entities governed by private law;

• Electronic documents signed by health professionals, as well as medical prescriptions for controlled drugs or medical certificates in electronic form;

Further Guidance

The following may have specified requirements for using electronic or digital signatures; the use of electronic signatures is not prohibited, but higher level of caution and attention should be exercised before using them, especially regarding the type of electronic signature required (among others):

• Government Filings and Documents to be recorded;

• Corporate law related matters;

• Documents to be notarized;

• Power of attorney to be used before the courts (ad judicia)

MP 2,200-2/2001 acknowledges the validity of electronic documents that use electronic signatures (or simple electronic signatures, as referred to in Law 14,063/2020). If an agreement is executed using a simple electronic signature and its authenticity is challenged, the parties may be required to prove the terms of the agreement and, in case of a dispute, present supporting evidence in court. When the authenticity of a document is challenged, the burden of proof lies with the party who drew up the document. Should a dispute arise, electronic signatures with heightened identity or security information associated with them (e.g., an audit trail with identity documentation of the signer and fraud evident protections incorporated into the electronic document) may offer enhanced evidentiary weight.

For transactions involving a digital signature, a presumption of validity is placed on the signed document. Specifically, documents produced using the digital certification of ICP-Brasil and electronically signed using a digital signature pursuant to MP 2,200-2/2001 are deemed to be presumed true and valid. If the validity of such a digital signature is challenged, the challenging party is required to provide evidence of the digital signature’s invalidity.