The Brazilian Superior Court of Justice (STJ) decided recently that electronic signatures made outside the ICP-Brazil system can be valid, as long as they meet security and authenticity requirements.
The ICP-Brazil system was established by Provisional Measure 2.200-2/01, the main legislative instrument that regulates the use of digital signatures in Brazil. Although the Provisional Measure stipulates that digitally signed documents with certificates issued within the ICP-Brazil are presumed to be true in relation to their signatories, it does not exclude the possibility of other forms of signature, as long as they meet certain authenticity and security requirements.
In addition to the provisional measure, Law 14.063/20 is also an important regulatory framework in Brazil that provides definitions for the existing types of electronic signatures, which are:
1. Simple: The most basic form, using methods such as login and password or email confirmation. It has legal validity, but with a lower degree of security.
2. Advanced: Guarantees the link between the signatory and the document and the integrity of the content, using more robust authentication methods, but is not linked to the ICP-Brazil system.
3. Qualified (or digital): Secured by a digital certificate issued by the ICP-Brazil, ensuring maximum security and legal enforceability.
The case judged by the STJ involved an advanced electronic signature made with a foreign certificate, outside the ICP-Brazil system, in a bank credit note. The court, when analyzing the case, considered that the electronic signature, even without ICP-Brazil certification, can be valid, as long as it guarantees the identification of the signatory and the integrity of the document.
According to STJ’s understanding, the legislator’s intention was to create different levels of probative force of electronic signatures, according to the technological authentication method used by the parties, and – at the same time – to confer legal validity to any type of electronic signature, considering private autonomy and the freedom of forms of declaration of wills between individuals.
For the STJ “the advanced electronic signature would be the equivalent of a signature recognized by similarity, while the qualified electronic signature would be the signature recognized by authenticity. Both are valid and only differ in terms of probative force.”
This decision brings several benefits, such as simplifying processes, reducing costs and increasing flexibility in commercial relations, especially in international transactions. However, it is essential to emphasize that the security and authenticity of electronic signatures remain crucial aspects. The parties involved must adopt measures to ensure the integrity of the documents and the identification of the signatories.
