eSignature Legality Guide

None.

MP 2,200-2/2001 recognizes two types of signatures:

• Electronic Signature: Any signature created by a method that demonstrates the authenticity and integrity of the electronic document (including digital certificates not issued by ICP-Brasil), as long as the parties accept it as valid or it is accepted by the recipient.
• Digital Signature: A signature that is generated using an ICP-Brasil digital certificate.

Law 14,063/2020, in turn, defines three categories of electronic signatures:

• Simple Electronic Signature: Any electronic signature that enables identification of the signer and links or associates data in electronic form to the signer. This is equivalent to the electronic signature under MP 2,200-2/2001.
• Advanced Electronic Signature: An electronic signature that uses other means to prove authorship and integrity of electronic documents (including digital certificates not issued by ICP-Brasil), provided the parties accept it as valid or it is accepted by the recipient. It must: (a) be uniquely linked to the signer; (b) be created using data under the exclusive control of the signer, with a high level of trust; and (c) be connected to the signed data so that any changes are detectable.
• Qualified Electronic Signature: An electronic signature created with an ICP-Brasil digital certificate. This is essentially the same as the digital signature under MP 2,200-2/2001.

Law 14,063/2020 also provides that (a) advanced electronic signatures can be used in situations where standard electronic signatures are allowed (art. 5, §1, I, “a”); and (b) qualified electronic signatures can be used wherever standard or advanced electronic signatures are permitted (art. 5, §1, III). In the event of conflicting laws or regulations, the use of qualified electronic signatures takes precedence (art. 5, §5).

In Brazil, most agreements and documents can be created and signed electronically, provided that (a) the method used can generate electronic signatures that meet the legal requirements for authenticity and integrity; (b) the parties agree to use an electronic format (either explicitly or implicitly); and (c) there is no legal restriction against using electronic signatures or records.

For documents and agreements involving the public sector, electronic signatures are allowed, but advanced or qualified electronic signatures are generally required in most cases, including (but not limited to):

• Acts signed by the President, heads of branches, Ministers of State, or authorized representatives of a branch or constitutionally autonomous body of a federative entity;
• Issuance of electronic invoices (except for individuals or Individual Microentrepreneurs, where it may be optional);
• Real estate transfers and registrations;
• Minutes of meetings, conventions, and assemblies of private legal entities;
• Electronic documents signed by healthcare professionals, including electronic prescriptions for controlled substances and electronic medical certificates;

The following situations may have specific requirements for electronic or digital signatures. While electronic signatures are generally allowed, extra care should be taken to ensure the correct type of signature is used, especially in the following cases:

• Government filings and documents that need to be recorded;
• Matters related to corporate law;
• Documents that require notarization;
• Powers of attorney to be used in court (ad judicia);

MP 2,200-2/2001 recognizes the validity of electronic documents signed with electronic signatures (or simple electronic signatures as defined in Law 14,063/2020). If a contract is signed with a simple electronic signature and its authenticity is questioned, the parties may need to prove the terms of the agreement and provide supporting evidence in court if a dispute arises. In such cases, the party who prepared the document bears the burden of proof. Using electronic signatures with enhanced identity verification or security features (such as an audit trail with signer identification and anti-fraud protections) can provide stronger evidence.

For transactions using digital signatures, the signed document is presumed valid. Specifically, documents signed with an ICP-Brasil digital certificate and a digital signature under MP 2,200-2/2001 are presumed to be authentic and valid. If the validity of a digital signature is challenged, the burden of proof falls on the party contesting its validity.