A digital signature has become increasingly common in the work routine of many people. In the current scenario where the home office was adopted by several business sectors, signing a document digitally is more practical and faster. But does he have legal validity? The answer is yes and we owe it to the approval of the digital signature MP.
Provisional Measure No. 2.200-2 has precisely this purpose. So, if you use electronic signatures in your company or are thinking about adopting them, it is essential to know how this MP works. Continue reading this article until the end to understand it!
What is digital signature?
A digital signature allows a person to use a digital certificate that proves its authorship and identity at the time of signing.
However, the certificate must be issued by a national certification authority. It can even be used in other forms of electronic signature such as the OAB token and the e-CNPJ.
Also because the digital signature is a type of electronic signature, although the two terms are commonly confused.
What makes a digital signature different from an electronic one?
The two terms are similar, but there are differences between electronic and digital signatures.
The electronic signature makes use of electronic means to validate acts. For this reason, its application is very broad and can be applied in various digital media, such as:
- facial recognition: form widely used to allow the entry of authorized people to certain places;
- Biometry: seen mainly in ATMs, it allows the fingerprint to identify the person;
- login and password: Often used to grant access to email accounts and online platforms.
What makes these formats different? electronic signature of digital is that it makes use of encryption in order to make it valid and also requires a digital certificate whose mode of issuance we will explain later in this article.
What is the digital signature for?
According to Brazilian law, there are no restrictions on the ways in which the digital signature is used, although some are more common in companies.
The first concerns contracts and amendments. When you sign them with collaborators, suppliers or customers, it's easier and faster to do it via digital signature.
It is also applied in some specific areas such as medical for issuing prescriptions or health reports and also in the real estate market that involves purchase and sale contracts.
What is required to have a digital signature?
O digital certificate It has a technology that allows data encryption that also guarantees authenticity and privacy with regard to electronic information.
Therefore, it is a digital document capable of identifying natural and legal persons in the virtual world. Thus, instead of making transitions in person, it is possible to perform them remotely, which gives faster processes .
Digital certification emerged on August 24, 2001 from the Provisional Measure No. 2.200-2 that is the protagonist of this text and about which we will talk later.
So, in short, this certificate brings the digital identity that grants the permission to sign electronic documents with legal validity.
How does the digital certificate work?
In practice, the digital version of the document is sent to the signatory to sign. The platform used to generate this signature must comply with the rules of the ICP-Brazil.
There is the possibility of requiring people who sign them to present documents that prove their ownership (a practice that has become commonplace in virtual banks).
In addition, there is also the structure of encrypted public keys that guarantee the integrity of the signed document. In this way, all parties are assured of the integrity and non-repudiation of the digitally signed conditions.
On availability, the certificate can be valid for 3 years (called A3) or 1 year (receiving the title of A1).
How to issue the digital certificate?
The first step in obtaining a digital certificate is choosing a certificate authority. All those that exist in the market respond to ICP-Brasil for being their regulator.
The most common certificates are the e-CPF and e-CNPJ, which are operated as an electronic version of the standard CPF and CNPJ.
As an individual, you can use the e-CPF to have copies of the IRPF statements, in addition to having a simpler process for collecting the FGTS. The e-CNPJ allows you to sign digital documents with legal validity, issue invoices and carry out banking transactions electronically.
⚠️ Also check out these related articles ????
➡️ Learn how to put digital signature on PDF
➡️ Learn how a digital signature verifier works
➡️ How to make a free digital signature in Word
What is Provisional Measure No. 2.200-2?
The digital signature MP, called Provisional Measure nº 2.200-2, is the legislation responsible for regularizing the digital contracts, in addition to allowing the creation of the ICP-Brasil (responsible for the public key infrastructure) and the ITI (who authorizes digital certificate).
Therefore, Provisional Measure nº 2.200-2 is considered one of the first government initiatives that covers authenticity, integrity and legal validity of a digital signature since its creation in 2001, which facilitates the routine of companies that need to use it.
However, it is worth saying that this was not the first attempt to make this model real.
Were there other bills in Congress before MP 2.200-2 was created?
Yes, in 1999, two bills were created that talk about digital signatures and aim at their legal validity.
The first is the Bill 1.589 by Dr. Hélio from PDT/SP. The menu establishes the electronic invoice and digital signature in transactions made by electronic commerce, validating them legally.
O Bill 1.483, also by Dr. Hélio, has the same purpose regarding the creation, invoicing and authentication of electronic signatures of documents.
Despite having been created more than 20 years ago, the two projects have not yet been approved. Fortunately, MP 2.200-2 appeared two years later with the same proposal.
What points have become obstacles for the digital signature MP?
Although Provisional Measure No. 2.200-2 emerged as a government initiative to regulate the electronic document in the country – which benefits many people – three moments almost got in the way. Check out what they were.
Deadline determined by Constitutional Amendment number 32
On September 11, 2001, EC nº 32 was approved, which applies the loss of effectiveness of any provisional measure if they are not converted into law within sixty days. This led some people to doubt at the time (in fact, to this day) from the following question: considering this amendment, is MP-2200-2 still in force? The answer is yes.
However, this happened by luck. After all, the Provisional Measure referring to electronic signatures received its approval on August 24, 2001, that is, the month before the adoption of Constitutional Amendment number 32.
Therefore, everything that applies MP 2.200-2 was not affected by what EC nº 32 defends, as it was approved before.
MP 2.200-2 lagged point
Another point that could have been an obstacle to its applications is within the content of the Provisional Measure in question.
As it is merely descriptive and procedural, only its most relevant articles gained prominence. However, an excerpt from article 10 deserves our attention, as it says:
“The statements contained in the documents in electronic form produced using the certification process provided by ICP-Brasil are presumed to be true in relation to the signatories, pursuant to art. 131 of Law No. 3.071, of January 1, 1916 - Civil Code."
This makes us conclude that the article in question is outdated, as the Civil Code of 1.916 had its rule revoked on January 10, 2003 as soon as the new Code (Law No. 10.406 of January 10, 2002) came into force.
However, another excerpt from article 10 highlights an important point: everything that is provided for in the Provisional Measure does not prevent the use of other means of proving the authority and integrity of electronic documents, which includes those that are not issued by ICP-Brasil.
That's why, although MP 2.200-2 was created to guarantee the validity of electronic signatures, you don't need to depend on the digital certificate to have one in your company. You can even create one using the Microsoft Word, in addition to relying on the service of professional companies such as ZapSign.
OAB draft
The third point concerns the Draft bill from the Brazilian Bar Association, São Paulo section.
It was prepared by jurists and professionals specialized in the internet, in a way that aims at greater technical precision with regard to electronic commerce, digital signature and legal validity of electronic documents.
Therefore, the Draft promotes equating electronic commerce with traditional, without adopting the mixed model that Provisional Measure nº 2.200-2. This means that, for him, electronic signatures must have a certification, unlike the current mixed model that makes this optional.
As it is a draft bill, it is still an outline of the guidelines for what could become a bill. Therefore, in the market, everything contained in the Provisional Measure dealt with in this article continues to apply.
Now that you understand what the digital signature MP is and how it works, we emphasize the importance of knowing in detail the legal validity of this type of firm. That is why, We invite you to continue with us and check out this article we wrote on the subject.
