Technological evolution has revolutionized the way we conduct business and deal with legal issues in Brazil and around the world. In this scenario, the electronic signature has emerged as a powerful tool that streamlines processes and eliminates the need for physical documents. However, its use raises crucial questions about authenticity, validity and security. Therefore, understanding what regulates the electronic signature law in Brazil is essential.
In this article, we will explain in detail what Brazilian legislation says about electronic signatures, their different levels of security, the types of documents that can be signed electronically and how companies and citizens can benefit from this practice.
Additionally, we will address the legal implications and challenges that organizations face when implementing electronic signatures in their processes. Let's go?
The digital era and the need to modernize and simplify processes
Na digital age In which we find ourselves, technology permeates almost every aspect of our lives. In this context, the modernization and simplification of processes have become imperative to keep up with the accelerated pace of transformations.
In Brazil, this reality is especially evident in the legal and business fields, and the electronic signature stands out as a clear example of this evolution.
The demand for modernization is not just a matter of convenience, but a vital necessity. Physical documents, paper signatures and manual processes no longer meet the expectations of an increasingly connected society.
Companies and public bodies need to adapt to this reality, simplifying procedures and adopting electronic solutions.
The Electronic Signature Law No. 14.620
In the Brazilian context, the promulgation of the Electronic Signature Law No. 14.620, in 2021, marked a significant step in the regulation and recognition of electronic signatures. This law is a relevant milestone that establishes the basis for the widespread adoption of this innovative practice in the country.
It brought clarity and legal security, defining the essential parameters and requirements for the validity of electronic signatures in Brazil, in addition to establishing three levels of security: simple, advanced and qualified, adapting to different types of transactions and documents, from the most everyday to the most sensitive.
Furthermore, Law 14.620 establishes the parameters for the Public Key Infrastructure (ICP-Brazil), which is the basis for the security of electronic signatures. This infrastructure, regulated by the National Data Protection Authority (ANPD), is responsible for guaranteeing the authenticity and integrity of electronically signed documents.
What is electronic signature?
Electronic signature is a technological tool whose service is to obtain approval or consent from someone through recognition via electronic means with legal validity. In many cases, it operates – in a secure and verifiable way – as a substitute for handwriting, especially documents and contracts.
Therefore, all the processes involved in manually signing a document, which include going to notary offices or sending the papers by mail for the parties to sign, can be simplified with the purchase of an electronic signature.
The same goes for other forms of recognition. For example: when you go to the bank and need to insert your finger into the ATM to perform biometric recognition, this is a electronic signature type. The same applies when you access a service on the internet and use a token to recognize your identification as well as log in using a personal password.
Thus, although in analogical times the most common form of personal recognition was the signature (which, in some cases, needs to be authenticated at a notary's office), this range is much more varied nowadays, which even facilitates the hiring of employees, suppliers and customers.
In times of working from home, this is very beneficial, as it means that people do not need to be in your office to sign the documents that prove the new partnership or contract. They can be anywhere to sign them, as long as they have access to the necessary tools – like a cell connected to the internet.
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Parties, witnesses and extrajudicial executive titles in electronic signature
When we talk about any signature process, whether traditional or electronic, it is worth highlighting the importance of the signature of each of the signatories involved in the agreement, as it is what legally certifies the consent of the parties in relation to the content of the document.
Likewise, the signature of witnesses stands out as an equally essential practice to strengthen the reliability of the document.
After all, witnesses confirm the authenticity of the signatures of the parties involved in the contract, in addition to establishing a clear record of the date and place the contract was signed, which is essential to determine whether the contract was signed within the legal deadlines and , in some cases, to calculate the onset of contractual obligations, such as payment terms.
Witnesses also play an important role in litigation cases. If any legal disputes arise regarding the contract, witnesses can provide objective and independent testimony about the signing of the contract and the circumstances involved.
Still, it is worth highlighting that the signature of witnesses on a contract does not represent an obligation – however, the document signed by witnesses can be executed faster, if necessary – this is because the address book of witnesses gives the document the classification as an extrajudicial executive title.
Extrajudicial executive titles are documents recognized by law that allow the execution of debts or obligations without the need for judicial proceedings, speeding up collection and guaranteeing the effectiveness of rights.
These titles are considered proof of credit, which means that they do not require judicial approval. The following are considered extrajudicial executive titles:
- bills of exchange;
- promissory notes;
- public deeds;
- mortgage-secured contracts;
- life insurance contracts (in case of death);
- and many others.
Law 14.063 and the exemption from witnesses
Law No. 14.063 introduced a series of significant advances in the digitalization of public services in the country. Its main objective was to simplify and modernize administrative procedures, making them more accessible to citizens and companies. However, to achieve this objective, the law addressed the issue of electronic signature, which is a crucial component of any digital process.
Aiming at a necessary overhaul of the process of formalizing legal agreements that take place digitally, and facilitating the judicial execution of electronic documents signed only between the parties, the terms of the new law amend the Civil Procedure Code, recognizing the validity and effectiveness of these contracts as extrajudicial executive titles.
This means that these electronic documents have executive force and can be taken directly to judicial execution in case of non-compliance with obligations.
Finally, the law establishes that authentication (the process of verifying the identity of the user accessing a system or service) and electronic signature (the expression of consent or agreement with an electronic document), accompanied by a digital certificate (instrument that certifies the authenticity of electronic signatures and the integrity of signed documents), have the same legal value as handwritten signatures on paper.
This measure promotes trust in electronic transactions and has enabled the widespread adoption of electronic signatures in a variety of sectors, from commercial contracts to government processes.
The STJ's decision on digital signature and the role of certification in these signatures
Although the STJ's position was already focused on adapting the legislation to the current scenario, in which the majority of businesses are signed via virtual means, there was, until then, a consensus on the matter.
However, with the inclusion of § 4 in the law, the answer to this question is finally established: it is defined that any type of electronic signature provided for by law is admitted for extrajudicial executive titles to be constituted or digitally attested.
Therefore, the electronic signature certified by any entity, even if not accredited by ICP-Brasil, becomes executive effective, since the entity represents the role of the witness.
Finally, the new law is also applicable to executions already proposed, regardless of whether or not they have been analyzed in this aspect.
The impacts of the new regulation
The legislative change represents a real advance in recognizing the effectiveness and security of electronic contracts in the legal sphere, encouraging the use of digital means to formalize business and contributing to the modernization and reduction of bureaucracy in legal processes.
In fact, with the new law, the judicial execution of electronic documents becomes more agile, efficient and adapted to the reality of commercial transactions in the digital era.
However, it is especially necessary to remember that the increased ease and speed in formalizing electronic documents provided by the new regulations also reinforces the importance of choosing electronic signature solutions efficient and reliable.
If you want to know even more about the legal validity of electronic signatures, we recommend reading our free e-book. Just click here to learn about all the legal, technical and practical aspects that guarantee compliance with Brazilian regulations!
