Electronic & Digital Signatures in Brazil

Legislation

The regulation, MP 2.200-2/2001 serves to regulate both simple electronic signatures as well as digital signatures and their usage related to the creation and validity of electronic documents. The regulation was also the impetus of the formation of the Brazilian Public Keys Infrastructure, or ICP-Brasil, which was established by several certifying authorities with the key purpose being to guarantee the legality and validity of electronic documentations as well as the carrying out of electronic transactions that are secure. In Brazil, the ICP-Brasil is the entity responsible for the issuance of the digital certificates that accompany digital signatures.

Furthermore, the law 14.063/2020 is positioned to facilitate and expand the usage of electronic signatures when it comes to processes, procedures, and interactions that involve the government. This law is only applicable to interactions between individuals or legal entities and public authorities. This includes those interactions that take place between different public entities and those that happen inside a public entity.  

Electronic Signing of Documents in General

Generally speaking, individuals and companies in Brazil may use a variety of tools to conduct their legal business and transactions. This could include things like verbal agreements or contracts, message exchanges, and solemn declarations or documents (like public deeds), including contracts that are signed electronically. The reason for this is that the Brazilian legal system assumes the principle of freedom when it comes to the form of contracts. According to the Civil Code, article 107, ‘the validity of the statement of will shall not depend on a special form, except when the law expressly requires it.’ 

This means that if the law doesn’t dictate or determine a specific form (or format) for conducting legal transactions (which happens in the case of buying and selling real estate, which should be conducted by public deed), any means or instrument that is used will be deemed valid, provided it is possible to prove the authenticity (of authorship) as well as integrity (non-tampering) of the given document.

Brazilian law governing electronic signatures sets out two key classifications for documents that are signed electronically. These have differences affecting the validity and legal effects that the given documents will produce in Brazil: 

• electronic documents that are certified by ICP-Brasil (Infraestrutura de Chaves Públicas Brasileira or Brazilian Public Key Infrastructure) 

• electronic documents that are not certified by ICP-Brasil

Electronic Documents That Are Certified by ICP-Brasil 

ICP-Brasil is a chain of hierarchy that is made up of a number of different entities. It was created to issue digital certificates that attest to the fact that a certain act that was performed in an electronic environment was, in fact, performed by a specific person or someone who is authorized to act on behalf of that specific person by way of a password used in line with specific procedures. 

In the context of Brazil, a digital signature that is certified by way of ICP-Brasil is a guarantee of the authenticity of the signed document. These signed documents are then allowed to be used as original documentation in legal proceedings and enjoy the same presumption of truth as documents signed by hand. 

Electronic Documents That Are Not Certified by ICP-Brasil

The Brazilian Civil Code’s article 107 expresses that ‘[t]he validity of a declaration of will does not depend on any special form unless the law expressly so requires.’ Based on that, people and enterprises may use different mechanisms for creating and signing contracts in their course of business. This could be from an exchange of emails all the way through to creating formal documentation. The idea of freedom as it applies to legal transactions in Brazil is such that courts most often officially recognize that oral contracts are valid, provided there is enough evidence to identify the critical elements of the given document. 

As a general rule, any electronic documentation that does not carry ICP-Brasil signatures remains valid. However, their probative force is reduced compared to documents that are ICP-Brasil certified. Their evidentiary weight is directly dependent on how credible the system is that was used to create the document in the first place: ‘electronic documents have probative value as long as they are such as to conserve the integrity of their contents and indicate their authorship, regardless of the technology employed’ (Statement 297, IV Civil Law Symposium).

Electronic Signatures in Interactions Between Public Entities, & Between Private Parties & Public Entities 

In line with an international trend, Brazil’s law, 14.063/2020, which is applicable to those interactions between public entities, between private parties and public entities, and health professionals, distinguishes between three different types of electronic signatures. These are as follows: 

Simple Electronic Signatures

These allow the signee or signatory to be identified by way of attaching or linking certain data to other data of the signee in electronic format. These signatures can be used for documents like:

• General private documentation that doesn’t have to assume a specific form. These include, but are not limited to:

  • contracts in general

  • forms

  • terms of adhesion

  • receipts

  • internal corporate documents

• Documents that are considered by public entities to have lesser impact and that do not involve information that is confidential and protected by law. (Note: The viability of a simple signature depends on every public entity’s regulation.)

Advanced Electronic Signatures

This type of signature uses certificates or other means to prove both the authorship and integrity of electronic documentations. This is so that the document can be linked to a single signee with a high level of assurance (using data that is under the signee’s exclusive control) and any changes to the signed document after the fact can be detected. Advanced signatures can be used for documents like: 

• Prescriptions for medications that are not subject to special control

• Corporate documentation that is to be registered with Commercial Registries, like:

  • articles of incorporation

  • minutes of corporate meetings of partners or shareholders

Qualified Electronic Signatures

These signatures use digital certificates that are issued by ICP-Brasil. They can be used on documents like:  

• briefs that are to be submitted in court proceedings

• electronic tax invoices (except for those issued by issuers who are natural persons or individual microentrepreneurs (MEIs))

• documents that are related to ownership transfer and registration of immovable property 

• documents that the parties need to be sure that can be enforced by expedited proceedings (loan agreements or other agreements that are related to debt collection must be signed electronically by two witnesses)

• documents that are to be registered with public entities that still do not authorize simple or advance signatures, such as:

  • IP agreements

  • guarantees

• prescriptions for medications that are subject to special control

• medical certificates
  

It is important to note that Law 14.063/2020 does not apply to electronic signing of documents in general. It is rather directed specifically to the internal processes of public entities (article 2(I)), to interactions between different public entities (article 2(III)), and to interactions between public entities and persons or private entities. Article 2 of the Law establishes clearly that the Law neither applies to court proceedings (item I), nor to internal creation of documents by companies or contracts between private parties. Even so, the way the Law classifies electronic signatures into simple, advanced, and qualified, tends to serve as a parameter for the sector. 

Documents considered valid with simple electronic signatures (SES) in Brazil

• General private documents that do not need to adopt a specific form, like:

  • contracts in general

  • forms

  • terms of adhesion

  • receipts

  • internal corporate documents

• Documents that public entities consider to hold lesser impact and that do not involve confidential information that is protected by law (Note: The viability of simple signatures depends on each public entity’s own regulation).

Documents considered valid with advanced electronic signatures (AES) in Brazil

• Prescriptions for medications that are not subject to special control

• Corporate documents that are to be registered with Commercial Registries, like:

  • articles of incorporation

  • minutes of corporate meetings of partners or shareholders

Documents considered valid with qualified electronic signatures (QES) in Brazil

• briefs to be submitted in court proceedings

• electronic tax invoices (except for those issued by issuers who are natural persons or individual microentrepreneurs (MEIs))

• documents that are related to ownership transfer and registration of immovable property

• documents that the parties need to be sure that can be enforced by expedited proceedings (loan agreements, or other agreements related to debt collection must be signed electronically by two witnesses)

• documents to be registered with public entities that still do not authorize simple or advanced signatures, such as:

  • IP agreements

  • guarantees

• prescriptions for medications subject to special control

• medical certificates
  

Documents that should only be signed with a wet signature in Brazil

• bills of exchange

• documents to be registered with public entities that are not equipped to register electronic documents
  

Helpful Resources

• Smallpdf: A Lei 14.063/2020 e as assinaturas eletrônicas no Brasil

This page is intended to communicate general information and does not constitute legal advice. While we have made every effort to ensure that this information is both accurate and up to date, it may not necessarily represent the most recent version of the legal topics in question. No action should be taken based on the information provided herewith and Smallpdf and its employees disclaim all liability relating to any actions that are or are not taken in reliance upon this information to the fullest extent permitted by law. In the case of any questions or uncertainty regarding the legality of electronic and/or digital signatures in your country or area, please consult your local laws or a legal professional for advice.