Nowadays, when the electronic signature reshapes the way we conduct our daily transactions, document validation has become a fundamental piece in the search for efficiency and practicality. Among the innovations that emerged in this context, an intriguing question arises: It would be possible to use emojis as an electronic signature?
In this article, we will explain the legality, security and acceptance of emojis as a means of authentication in electronic documents.
Continue reading to learn about the technical, legal and cultural aspects surrounding this proposal, through a comprehensive analysis of the feasibility and challenges associated with using emojis as an electronic signature.
The impacts of the digital revolution on contract law
Over the past decade, we have witnessed a digital metamorphosis that has transcended all spheres of society, shaping the way we interact, communicate and, crucially, how we conduct legal transactions.
Technological evolution, driven by advances such as artificial intelligence, blockchain and the Internet of Things, has fundamentally changed the legal landscape, highlighting the need for constant adaptation – especially in processes business.
In the specific context of contract law, digital transformation has raised questions about the validity and effectiveness of electronic signatures.
The speed and practicality inherent to online transactions confront traditional structures, raising unusual questions such as the possibility of an emoji being considered a valid electronic signature – especially after the emblematic case of South West Terminal Ltd. vs Achter Land (in which we will talk later).
The difference between electronic signature and digital signature
The main difference between digital and electronic signatures is in the way they are implemented and the level of security offered, as we present below.
Digital Signature (ICP-Brazil)
The digital signatures associated with the Brazilian Public Key Infrastructure (ICP-Brazil) are built on the solid foundation of public key cryptography. This method involves the use of digital certificates, issued exclusively by Certification Authorities (CA) officially accredited by ICP-Brasil.
It is noteworthy that this type of signature is characterized by a high level of security, providing reliability and authenticity to digital transactions. Legally recognized as equivalent to handwritten signatures, digital signatures at ICP-Brasil constitute a robust measure to guarantee the integrity and legal validity of documents electronics.
Electronic signature
On the other hand, the term “electronic signature” covers a wider range of manifestations of digital will, being a more flexible and adaptable concept to different forms of online interactions. This term ranges from simple actions, such as clicking buttons, to more advanced methods, such as the digital signatures mentioned above.
Notably, electronic signatures are not rigidly tied to a specific framework, providing greater flexibility and accessibility in conducting electronic transactions. Its versatile nature allows for effective incorporation in different contexts, providing an agile and adaptable alternative to the dynamic demands of the digital era.
In other words, the main difference between digital signature and electronic signature lies in the fact that the first is recognized for its high level of security and linkage to a specific structure, while the second presents itself as a more flexible option, meeting different needs. subscription needs effectively and affordably.
Both approaches play important roles in the feasibility and security of electronic transactions, contributing to the evolution and efficiency of processes contemporary digital.
Provisional Measure 2.200-2/2001, which established the Brazilian Public Key Infrastructure (ICP-Brazil), established the legal bases for the use of digital signatures in Brazil. It recognizes the legal validity of both digital and electronic signatures, as long as they meet the authenticity and integrity requirements.
Article 10 of the aforementioned measure highlights the equivalence between electronic and handwritten signatures, as long as there is agreement between the parties involved or the law does not require a specific form.
Brazilian legislation, therefore, allows for a wide range of forms of electronic signatures, giving space for adaptation to different needs and contexts, while maintaining a solid basis for legal security, especially in digital signatures associated with ICP-Brasil .
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After all, is it possible to use an emoji as an electronic signature? The case of South West Terminal Ltd v Achter Land
To explore this theme, we highlight the emblematic case of South West Terminal Ltd. vs Achter Land. This case, according to the official court of Canada, which reverberates in international jurisprudence, involves the dispute over the validity of a commercial transaction in which one of the parties used a specific emoji as a form of electronic signature.
Farmer Chris Achter of Saskatchewan, Canada, received a draft contract from Kent Mickleborough for the purchase of 86 tons of flax in 2021. In response, Achter sent a thumbs-up emoji (👍), later claiming that it was just an acknowledgment of receipt, according to the sworn statement.
However, on the stipulated date, Kent did not receive the purchased product, claiming that the thumbs-up emoji received previously indicated confirmation of the agreement, and filed a lawsuit for breach of contract and damages. The Court of King's Bench favored Mickleborough, citing Dictionary.com's definition of the emoji, which associates it with expressing consent, approval or encouragement in digital communications.
The judge highlighted that, although the traditional signature is the classic way of confirming acceptance, modern methods, such as emojis, may be valid for this purpose. He further argued that emojis can be a legitimate form of signature, allowing the confirmation of contracts and agreements in digital communications, recognizing evolution in the digital era, concluding that trying to contain technology and its common use is in vain.
It's in Brazil?
The case of South West Terminal Ltd. v Achter Land, with the Court of King's Bench ruling in favor of Mr. Mickleborough, raises interesting considerations when compared to Brazilian law, especially with regard to the use of emojis as electronic signatures. In Brazil, the relevant legislation includes the Civil Code and Provisional Measure 2.200-2/2001, which established the Brazilian Public Key Infrastructure (ICP-Brazil).
According to the Brazilian Civil Code, in its article 107, the validity of the contract is established when there is a manifestation of the will of the parties. Article 104, in turn, highlights that the validity of the legal transaction is not conditioned on the specific form, except when the law expressly requires it.
Therefore, Brazilian law does not impose a specific form for expressing will, allowing for a more flexible interpretation regarding the validity of contracts.
A Provisional Measure 2.200-2/2001, in turn, recognizes the legal validity of electronic signatures, as long as they meet the authenticity and integrity requirements. Article 10 of the measure highlights the equivalence between electronic and handwritten signatures, respecting the wishes of the parties involved.
As for emojis, Brazilian legislation does not directly specify this form of representation in the definition of electronic signatures. However, given the broad scope of the legislation, it is possible to argue that emojis can be considered valid, as long as they meet the authenticity and integrity requirements required by MP 2.200-2/2001.
The expression of will by the parties involved is the core of the validity of contracts, and the use of emojis can be interpreted as a modern and legitimate way of expressing consent. Possible objections may arise regarding the ambiguity in the interpretation of emojis, as their meaning may vary culturally.
However, the Court could consider the context of the communication and the intent of the parties to determine the validity of the emoji as an electronic signature.
We therefore conclude that Brazilian law, based on the Civil Code and MP 2.200-2/2001, provides a flexible legal basis, which could be interpreted to accept emojis as valid forms of electronic signatures, as long as they meet the fundamental principles of authenticity and integrity.
However, the subject still needs to be discussed in greater depth, since rapid technological advances have introduced new ways of negotiating and contracting, demanding the attention of legal professionals to assess their specific legal implications.
Furthermore, the entire debate about whether it is legally possible to use emojis as electronic signatures reflects the dynamic evolution of contractual practices in the digital era. The case South West Terminal Ltd. vs Achter Land, although not binding under Brazilian law, raises pertinent reflections, especially in light of the Civil Code and MP 2.200-2/2001.
Brazilian legislation, by recognizing the equivalence between electronic and handwritten signatures, offers fertile ground for the acceptance of innovative forms of expression of will, such as the use of emojis. However, it is necessary to consider the clarity and cultural interpretation of these symbols to avoid ambiguities.
The legal validity of electronic signatures is, in fact, a rather broad topic – so we invite you to download our free ebook on the subject. Click here to find out about all the legal nuances, challenges and opportunities associated with the evolution of contractual practices in the digital era!
