Electronic Signature Laws & Regulations - Brazil

In Brazil, the use of electronic and certificate-based digital signatures is evolving and their acceptance in the business community and by public entities is increasing. Recently, this process has accelerated, and more laws and provisional measures have been issued regarding the use of electronic or digital signatures, and more businesses, governmental bodies and entities have started using and accepting electronically or digitally signed documents. However, it should be emphasized that no one can be obliged to contract electronically in Brazil, and the option for a handwritten signature should always be available.

The main laws and regulations that govern the use of electronic signatures and digital signatures in Brazil include:

1. The Brazilian Civil Code: Article 104, III of the Brazilian Civil Code: establishes the freedom of contract forms, meaning that a legal agreement is valid if it is in a form either prescribed by law or not explicitly prohibited by law.
2. The Provisional Executive Act 2.200-2 (“MP 2200”): The Provisional Executive Act of August 24, 2001 provides for the validity of general electronic agreements signed with a digital signature.

Per the Brazilian Civil Code, an electronically signed agreement must have a:

1. capable agent;
2. licit, possible and determined or determinable object; and
3. form that is prescribed or not prohibited by law.

Brazil maintains its own public key infrastructure (PKI) for digital certificates called “Infraestrutura de Chaves Públicas Brasileira” (ICP-Brasil). The authorized PKI-Brazil certifying authorities can be found here: https://estrutura.iti.gov.br/. MP 2200 guarantees the legal validity of digitally signed documents in the following situations:  

1. documents produced within ICP-Brasil; and
2. documents produced outside ICP-Brasil, if minimum parameters for evidencing the authorship and integrity are met.

For documents produced outside ICP-Brasil, the validity parameters of authorship and integrity are met when: (1) proof of the signer identification is provided; and (2) proof of the integrity of the signed document is provided, subject to the acceptance of the authentication method by all parties that are signing the document.

Electronic signatures that comply with the Brazilian Civil Code and MP 2200 are considered to have the same legal effect as a handwritten signature. Additionally, digital signatures backed by ICP-Brasil are granted a legal presumption that the signature belongs to the person who signed and that the content of the electronic document remains unchanged. In contrast, electronic signatures created outside of ICP-Brasil do not carry this legal presumption and the authorship and integrity of the document might be proven.

Special considerations

Transacting with public sector entities

There are no special requirements or restrictions for using digital or electronic signatures with government entities in Brazil other than the general rules established by the Brazilian Civil Code and MP 2200. However, government entities are not obliged to accept the use of electronic or digital signatures. Additionally, each government entity may establish its own procedure for electronic or digital signature (e.g., mandatory use of an ICP-Brasil digital certificate and/or use of a specific platform to sign documents electronically). It is therefore necessary to check with each applicable government entity to determine if digital and/or electronic signatures are accepted and, if so, what procedures must be followed.

Use cases that require a traditional signature

In Brazil, certain agreements and transactions have particular formats prescribed by law. For example, “solemn contracts” or “special contracts” must be in writing and must be registered within the Registry of Deeds or other specific Registries. Some examples of solemn contracts are collaterals and real estate sales, disinheritance (which can only be made by will), as well as marriage and prenuptial agreements. Additionally, documents requiring notarization cannot be replicated electronically.

\otwithstanding the above, several formalities have been eased due to the Covid-19 pandemic.  Provided that some formalities are met (which may vary and must be assessed on a case-by case basis), some types of agreements are now allowed to be signed electronically.  For example:

1. due to the recent creation of Electronic Notarial Acts System (“e-notariado”), some instruments that must be registered with the Real Estate Registry Office and/or executed through a public deed are now allowed to be signed electronically. To be considered valid, electronic notarial acts must fulfill the following requirements (i) notarial video conference to obtain the consent of the parties on the terms of the legal act; (ii) explicit agreement by the parties to the terms of the electronic notarial act; (iii) digital signature by the parties, exclusively through the “e-notariado”; (iv) signature of the Notary Public using the KPI-Brazil digital certificate; and (v) use of long-term documents formats with digital signature;
2. certain corporate-related documents may now be signed electronically. The formalities may change depending on each Brazilian state, since each Commercial Board may decide whether or not to receive and accept a document electronically or digitally signed by a third-party system or subscription portals;
3. agreements for the license (or transfer) of patents, industrial designs, trademarks, supply of technology, technical assistance and franchising are required to be registered with the INPI. In this case, it is important to note that the Contract Department of the INPI recently started accepting, for recording purposes, agreements executed electronically. If the agreement is signed by Brazilian parties, both parties must use a valid digital certificate issued by the Certification Authorities accredited by the KPI-Brazil. For foreign parties, however, the INPI accepts e-signatures without a digital certificate, when electronically notarized and apostilled.