In Colombia, electronic signatures and certificate-based digital signatures are commonly used in business and commerce. In general, any document that requires a signature may be signed with an electronic signature. However, electronic signatures are not frequently used before judicial or governmental authorities.
The laws governing electronic and digital signatures in Colombia include:
- Law 527 of 1999 which regulates e-commerce and provides the basis for the existence and enforceability of digital signatures;
- Decree 2364 of 2012 that differentiates between electronic signatures and digital signatures as a specific type of electronic signature.
According to Decree 2364, an electronic signature (or e-signature) is any mechanism such as codes, passwords, biometric data or cryptographic passwords that allows the identification of an individual in relation with a data message, as long as the mechanism is reliable and suitable for the purposes for which the signature is being used. Decree 2364 states that when a signature is required, an e-signature can be used if it is reliable and appropriate for the purposes of the message. An e-signature is deemed reliable if:
- the data used for the creation of the signature is owned exclusively by the signer; and
- it is possible to detect any unauthorized modification to the data message after the data message was signed.
A Digital signature is a type of electronic signature that is verified through a digital certificate. The digital signature’s main characteristic is that there is a certificate issued by an authorized entity that states and guarantees the validity of the signature and the identity of the signer. Additionally, Article 28 of Law 527 provides that a digital signature must be:
- unique to the person that uses it (the signer);
- verified (meaning that it is possible to verify that it was used by the signer);
- under the exclusive control of the person that uses it;
- linked to the information or the message that was signed in a way that if the information is modified, the signature is no longer valid;
- constructed in accordance with any additional applicable regulations.
The National Accreditation Organism – Organismo Nacional de Acreditación de Colombia ONAC publishes the Directorio de Acreditación, a list of entities authorized to issue digital certificates.
Under Colombian law, both electronic and digital signatures are equally as enforceable as handwritten signatures. However, a digital signature is generally considered more reliable because it is supported by a digital certificate.
Decree 2364 requires the holder of an electronic signature to:
- keep control and custody of any data needed for the creation of the signature;
- prevent the unauthorized use of his/her data for the creation of the signature;
- promptly inform any person that has received, holds or will receive a document or data message electronically signed, if:
- the data for the creation of the signature is in doubt or no longer reliable
- circumstances that have or might cause a relevant risk that the data for the creation of the signature is no longer reliable.
The general rule is that any document that can be signed by hand can also be signed electronically. However, in practice, certain entities and authorities, such as notaries, have not implemented the technical mechanisms needed to use electronic signatures.
Electronic signatures are subject to Colombia’s general data protection rules, meaning that the processing of personal data shall be previously and expressly authorized by the data subject. However, when a person sends or signs an electronic document, it is possible to conclude that he/she has authorized the processing of his/her personal data.
Transacting with public sector entities
While there are no special requirements or restrictions for using electronic signatures with government entities in Colombia, it is not common practice for government entities to use electronic signatures. For bureaucratic reasons, government entities may require that documents be signed with a traditional signature.
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