Social Distancing and Remote Signatures

During this time of quarantine, many people are finding it difficult to work from home. While this new reality is beneficial for many, for others it’s the opposite. Take, for example, the need to sign documents for any administrative procedure. This requires traveling to the location where the documents are kept, wasting time in traffic, and—given our current public health emergency—even putting one’s health at risk by going to these places where a handwritten signature is required.

During the pandemic, the use of new technologies for work-related activities increased. People who were initially reluctant to try them realized that they actually make life easier in many ways. One such technology is the digital signature, which eliminates the need for a physical presence when signing documents.

So, what are digital and electronic signatures? And more importantly, are they legally valid?

An electronic signature is a set of electronic data that is integrated, linked, or logically associated with other electronic data, used by the signatory as a means of identification, but which lacks one of the legal requirements to be considered a digital signature. This refers to an email address or a login code for a bank account that identifies each user, and it creates a presumption for the parties that the data message originates from the signatory and that the signatory approves the content of the data message. If the validity of the electronic signature is disputed, the burden of proof lies with the party invoking it.

A digital signature, on the other hand, is an electronic signature certified by an accredited provider—which is what sets it apart—that has been created using means that the signatory maintains under their exclusive control, so that it is linked solely to the signatory and the data to which it refers. It offers higher levels of security, allowing for the detection of any subsequent modifications and the verification of the holder’s identity. This helps prevent any doubts regarding the document’s integrity and authorship. An accredited provider is a private company authorized by the government to issue digital certificates for digital signatures, in accordance with legal requirements. 

The legal framework governing digital and electronic signatures is nothing new, as it has been in place in our country for nearly a decade. However, the use of this tool has become commonplace recently, in light of the public health emergency. The regulations governing this tool are set forth in Law No. 4017/10 and its amendment, Law No. 4,610/12, as well as Decree No. 7,369/11.

A common question is whether a digital signature has the same legal validity as a handwritten signature. The answer is yes. A digital signature is valid if it is accompanied by a certificate issued by a certification authority, and if the certificate is valid at the time of signing. Our regulations treat digital signatures as equivalent to handwritten signatures and stipulate that any document required by law to bear a handwritten signature is valid if a digital signature is used in its place.

What are the benefits?

There are several benefits to using this technology. Here are a few examples:

• It saves time for company executives and representatives.
• Saves on paper and printer costs, since it eliminates the need to print documents for signing.
• Convenience, since you can sign from wherever you are, as long as you have an electronic device to generate the digital signature.
• It reduces the physical space needed to store documents that must be printed for a handwritten signature.

According to the latest figures from the Ministry of Industry and Commerce, more than 25,000 people have already registered for digital signatures. This number has increased since the start of the quarantine, as the tool has become essential for individuals and businesses that need signed documents to conduct their business operations. 

Limitations of Digital Signatures and What's Next…

Although digital signatures offer significant benefits, they still have certain limitations established by law, such as the following acts: last wills and testaments, legal acts under family law, acknowledgment of paternity, documents executed by public deed, and cases where the parties have agreed to exclude the digital signature as an alternative for signing documents. 

And as if the trend toward digitization—including digital signatures—weren’t enough, a bill on the “Digital Validity of Mandatory Documents” was recently introduced, the primary purpose of which would be to validate the digital format of mandatory documents.

What are these mandatory documents? They include the national ID card, vehicle registration certificate, driver’s license, and authorization from the corresponding municipality. The aim of this bill is to ensure that, if a person loses any of these physical documents, they can access digital versions of them using a smartphone, which would have the same legal validity should any authority request them, while the application for the physical documents is being processed. 

Let's cheer up!

Naturally, there is always a fear of the new. Although this law has been in place for ten years, it was the lockdown that “forced” a large number of people to take the plunge and start using digital signatures, and now they are beginning to see the benefits. 

In light of this new reality, we must be the first to encourage innovation in new technologies and to use them, with the help of the relevant authorities. Our country still has a long way to go in terms of developing new technologies themselves, and the implementation and use of digital signatures is a major step forward. 

Finally, it is worth quoting from a well-known book “Why Nations Fail”: “The political and economic elites oppose innovation not because they are unaware of its consequences, but because they understand them all too well.”, let's show that we can be part of innovation and the use of new technologies to leave tradition behind and make way for the future.