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. 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:
- 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.
- 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 digitally.
Per the Brazilian Civil Code, an electronically signed agreement must have:
- a capable agent;
- a licit, possible and determined or determinable object; and
- a 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). MP 2200 guarantees the legal validity of digitally signed documents in the following situations:
- documents produced within ICP-Brasil; and
- 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 must be proven.
While Brazilian law does not prohibit the storage and processing of electronic signature data outside of Brazil, the Brazilian General Data Protection Law (LGPD) applies to the processing of personal data and should be observed in relation to the international transfer of personal data.
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.
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