What is an Electronic Signature?
Generally speaking, an electronic signature (or e-signature) is a technical process logically associated with a document which two (or more) individuals or organizations (the signatories) agree to rely on in order to express their intent to sign such document. Three components are therefore necessary: a document, a signatory and an e-signature tool. While the tool most commonly used for handwritten signatures is a simple pen, electronic signature tools are typically more complex.
From a regulatory standpoint, an electronic signature is a broad category that encompasses many types (or levels) of electronic signatures. Depending on the country it is used in, there are differences in purpose, legal acceptance, technical implementation and cultural acceptance of electronic signatures.
In particular, e-signature requirements tend to vary significantly between most “civil law” countries (including the European Union and many countries in South America and Asia), and most “common law” countries (such as the United States, Canada and Australia). Civil law countries typically support a “tiered” approach including higher levels of signature often called digital or qualified electronic signatures (typically required for specific types of contracts), as opposed to common law jurisdictions which are typically more technology-neutral.
In addition, some industries (such as healthcare or banking) and documents (such as marriage or adoption contracts) may require a higher level of e-signature.
What are the laws and regulations in Brazil?
Brazil’s regulatory framework is young, with the Constitution dating from 1988, the Civil Code being reformed in 2002 and the Code of Civil Procedure in 2015. This has led to many requirements being a result of the interpretation of not just one law or article, but the whole legal system and its principles.
Under Brazilian law, written signatures are not necessarily required for a contract and are generally considered valid when legally competent parties reach an agreement. In addition, the Provisional Measure No. 2200-2 (MP-2200/2001) created a certified standard for electronic signatures through the Brazilian Public Key Infrastructure (ICP-Brazil). ICP-Brazil is not commonly used in the context of employment due to the expense.
Is an electronic signature valid in Brazil?
Yes. Electronic signatures are generally considered valid in Brazil as long as the authenticity of the signature, the authenticity of the signer, and the integrity of the content in the record can be verified. In addition, contracts are considered valid regardless of the method used, except in cases where the law contains specific rules for a given document.
The ICP-Brazil certification or another certification can be used to increase the legal validity of an electronic signature, as long as all parties agree to the certification method. Any certification method selected should be able to validate the integrity and authorship of the signed document. Electronic signatures certified via ICP-Brazil have the same legal value as signatures that have been notarized. ICP-Brazil certification is not commonly used in the employment context, in part because the cost is prohibitive.
HR Best Practices: Electronic signatures are generally considered valid in the employment context in Brazil. When using electronic signatures, ensure that appropriate safeguards are in place and that metadata (such as time stamps) is properly recorded.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.