Brazil eSignature Compliance Note

Are eSignatures legal in Brazil? What laws primarily regulate eSignatures?

ESignatures are legal in Brazil, and Brazilian eSignatures are primarily regulated by the Brazilian Civil Code, Provisional Administrative Act 2,200-2 (“MP 2200”), Law No. 14,063/2020, and Law No. 13,874/2019 (the “Economic Freedom Act”).

What types of eSignatures are recognized in Brazil? What are the requirements for each?

Brazil recognizes three types of eSignatures, namely simple eSignatures, advanced eSignatures, and qualified eSignatures.

Simple eSignature:

Any eSignature that allows the identification of the signatory and attaches or associates data with other data in electronic format belonging to the signatory. It is equivalent to the eSignature under MP 2,200-2/2001.

Advanced eSignature:

An eSignature that uses any other means to prove the authorship and integrity of an electronic document (including digital certificates not issued by ICP-Brasil), as long as it is recognized as valid by the parties or accepted by the opposing party, with the following characteristics:

• The signature must be clearly associated with the signatory;
• The generation of the eSignature is under the exclusive control of the signatory with a high level of trust;
• The signature is associated with the data to which it relates, so that any further modification can be detected.

Qualified eSignature

An eSignature associated with the use of an ICP-Brasil digital certificate. In essence, this is the same as the digital signature provided in MP 2,200-2/2001.

In Brazil, what scenarios require eSignature standards? What are the corresponding standards?

The following situations must use advanced or qualified eSignatures (Article 5 of Law No. 14,063/2020):

• Acts registered with the Commercial Board
• Electronic documents signed by health professionals and signatures related to their professional fields (e.g., electronically issued prescriptions for controlled drugs and medical certificates)

The following situations must use qualified eSignatures (Article 5 of Law No. 14,063/2020):

• In acts by the head of power, ministers of state, or federal constitutional autonomous bodies of the holder or entity of power
• Issuance of electronic invoices, except when the issuer is an individual or individual micro-entrepreneur (MEI), in which case it becomes optional
• In acts of transfer and registration of real estate, except for the registration of acts in the Trade Board
• In other cases provided by law

The following do not prohibit the use of eSignatures, but greater caution and attention should be exercised before using eSignatures, especially regarding the type of eSignature required (among others):

• Government documents and documents to be recorded
• Corporate law-related matters (administrative in nature)
• Documents requiring notarization
• Powers of attorney used in court (litigation)