Legality and enforceability of electronic signatures in Brazil*

Brazil has fragmented electronic signature laws. There are separate laws regulating different aspects of the use of electronic signatures. The most important of them are the following:

• The Civil Code of Brazil establishes that a contract is valid if it is executed in a form not prohibited by the law.
• Provisional Executive Act 2,200-2/2001 establishes (i) the legal framework for the use of electronic and digital signatures in Brazil and (ii) the Brazilian public key infrastructure for digital certificates, ICP-Brasil.
• Law 14,063/2 provides the electronic signature usage rules for public health-related matters and state authorities.

Generally, Brazilian laws do not differentiate between electronic signatures and digital signatures. According to the Provisional Executive Act 2,200-2/2001, the electronic signature is recognized as valid in Brazil if the following requirements are met:

1. The signature certificate evidences the authorship of the document.
2. The data integrity of the signed document is proved.
3. The parties have agreed to use that signature and recognize it as valid.

The Law 14,063/21 established a substantial legal framework for the use of electronic signatures in public sector transactions. This includes the following transactions:

• Between state authorities and businesses.
• Between state authorities and individuals.
• Between different state authorities.
• Internal interactions between departments and entities of the public administration.
• Transactions related to public health-related matters, e.g., medical certificates.

The law defines an electronic signature as data in electronic format that is linked or logically associated with other data in electronic format and used by the signatory to sign the document.

For public sector transactions, the law establishes a 3-tier electronic signature system by distinguishing simple, advanced, and qualified electronic signatures.

A simple electronic signature must (i) allow the signatory to be identified and (ii) attach or associate data with other data in electronic form used by the signatory to sign the document.

An advanced electronic signature must:

1. Be uniquely associated with the signatory.
2. Use data to create an electronic signature, which the signatory can use with a high level of confidence to operate under their exclusive control.
3. Be related to the data associated with it in such a way that any subsequent modification to the signed document is detectable.

A qualified electronic signature is based on a digital signature certificate issued by the state public key infrastructure, ICP-Brasil.

Brazilian laws provide a list of transactions involving state authorities when simple, advanced, and qualified electronic signatures can be used. The lists provided below are not exhaustive.

Simple electronic signatures:

• In lower-impact transactions with a public entity.
• If a transaction involving a public entity does not involve information protected by a degree of confidentiality.

Advanced electronic signatures:

• During the registration of acts before the commercial boards.
• When a health professional signs an electronic document related to their area of ​​activity.
• When issuing prescriptions for medicines in electronic form.
• In all transactions when a simple electronic signature can be used.
• When directly prescribed by the internal requirements of the public entity.

Qualified electronic signatures:

• When signing legislative acts.
• When issuing electronic invoices.
• In transactions involving the transfer and registration of real estate.
• When issuing prescriptions for medicines that are subject to special control in electronic form.
• When issuing medical certificates in electronic form.
• In other situations required by the law.
• Generally, in any electronic interaction with a public entity.

The electronic signature, which is based on a digital signature certificate issued by the ICP-Brazil, has a presumption of validity. In other cases, it is assumed that a person seeking to introduce an electronic document or signature in any legal proceeding has the burden of proving the authenticity and integrity of the electronic signature.

Brazilian laws do not explicitly elaborate on this matter. However, as a general rule, no one can be obliged to use electronic signatures in contracts, and the option for a handwritten signature should always be available.

Therefore, it is assumed that parties to the transaction need to consent to the use of electronic signatures. In case of an argument, the asserting party might be required to provide evidence confirming the other party has agreed to sign the document electronically. That being said, it is unclear whether the person’s consent to use an electronic signature in Brazil may be inferred from the person’s conduct.

Last updated: September 2024