When the signature is made through a digital certificate (technology that uses data encryption, ensuring authenticity, confidentiality, integrity and non-repudiation of electronic information), it shall be classified as a digital signature, since it uses asymmetric encryption that is composed of a pair of cryptographic keys (public and private) that complement each other, being considered a kind of electronic signature. In Brazil, the digital signature was introduced and is regulated by the Provisional Measure (“Medida Provisória”) 2.200-2 of August 24, 2001 (“MP 2.200/01”).
Does the electronic signature have legal validity?
Article 107 of the Civil Code specifies the principle of freedom of forms, which determines that the form of expression of will is free, except in the cases required by law. Therefore, as long as there is agreement between the parties, regardless of the form of signature, it has legal validity.
The aforementioned Provisional Measure (“Medida Provisória”) MP 2.200-2 certifies in its article 1 the legal validity of signatures made by electronic means, in these terms:
“Art. 1st The Brazilian Public Key Infrastructure (“Infra-Estrutura de Chaves Públicas Brasileira”) – ICP-Brasil is hereby established to guarantee the authenticity, integrity and legal validity of documents in electronic form, support applications and enabled applications that use digital certificates, as well as the execution of secure electronic transactions.”
In addition, the new law 14.063 of September 23, 2020, which deals with signatures in the public area, defined 3 types of valid signatures: simple, advanced and qualified. In summary, simple and advanced signatures are those that we call an electronic signature, while the qualified signature, as it mandatorily employs the ICP Brasil digital certificate, is referred to as digital signature.