Electronic Signature in LATAM. Part 1

Taking advantages that we have been reviewing the new legislation about electronic signature that will be in force in 2016 some weeks ago, today we want to have a look at the position of electronic signature in LATAM. Given the length of this article we have decided to split it into two parts, the first […]

Taking advantages that we have been reviewing the new legislation about electronic signature that will be in force in 2016 some weeks ago, today we want to have a look at the position of electronic signature in LATAM. Given the length of this article we have decided to split it into two parts, the first is here.

Before we begin, we would like to make two clarifications: On the one hand say that the level of regulation of electronic signatures varies from country to country. However, the absence of rules governing the electronic signature in a given territory , does not imply the invalidity of it.

On the other hand comment that signing digitally documents can take many forms, from scanning through handwritten signature authentication through digital certificatesadvanced digital signature. The difference between the two is the legal validity because of the level of confidence it brings. At the end of the day, the goal is the same as in the case of a handwritten signature, show consent or affirm the commitment which is the document itself.

Overall, we can say that the advanced electronic signature is the most accepted positions is the one with full legal validity in court and LATAM is no exception . Note that there are many similarities between the Spanish legislation and the majority of Latin American countries in terms of electronic signatures.

The names of the electronic signature in LATAM change from country to country, in Mexico for example , which has a very similar regulations to the EU, there are differences between Advanced Electronic Signature and Simple one,  while in Colombia or Chile it is called digital signature. We will take a tour of each of the countries in Latin America to have a clear picture of the status of electronic signatures in LATAM .

1.- Argentina

The electronic signature is regulated , based on this legal framework. According to Argentine legislation , electronic signatures and digital signatures are not the same. Thus , the digital signature is presumed valid unless evidence to the contrary whenever verified. However , the electronic signature , the burden of proof regarding the digital signature is reversed, that is, if the firm be unknown for a party who invokes its authenticity prove their validity.

In other words, in Argentina , digital signature is what in Spain is called advanced electronic signature and electronic signature is equivalent to what we call simple electronic signature .

2.- Brazil 

The digital signature is regulated based on the rule  2.2002-2001  of August 24 of the PCI. In this case , the digital signature is recognised as valid provided it has been certified by PCI or by another PKI that the parties have agreed. Again considered valid the equivalent of an advanced electronic signature in Spain but does not speak of the simple electronic signature.

3.- Chile 

In this case, the regulation of electronic signatures is very similar to Spanish . Thus, their regulation difference between electronic signature  and advanced electronic signature. Unlike the previous cases, in Chile, electronic signatures is give validity itself if  the identity of the author can be proved. Chile has a regulation on the law 19,794 on electronic signatures and certification thereof.

4.- Colombia 

Law 527 on the access and use of data messages , electronic commerce and digital signature, is the basis of the regulatory framework in Colombia . In this case differentiation is made ​​between what comes to be the advanced electronic signature and simple, but a number of requirements that the digital signature must have to have the same validity as a handwritten signature is established. These are:

1.- It is unique to the person using it.
2.- It can be verified.
3.- It is under the exclusive control of the person using it.
4.- It is linked to information or message, so that if they are changed , the digital signature is invalidated.
5.- It is subject to the regulations adopted by the Government.

5.- Costa Rica

In this case the regulatory standard is the Law 8454 on Certificates , Digital Signatures and Electronic Documents . In Costa Rica differentiation between advanced digital signature and digital signature is made , however , in the aforementioned law recognizes the possibility of legally bind the actors involved in electronic transactions , allowing lead the virtual world transactions or processes that previously required the use of physical documents to be legally valid . In other words, it grants legal validity to the digital signature.

According to the rules , the difference between digital signature and advanced digital signature lies with the existence of a digital certificate.

6.- Ecuador 

According to the provisions of Law No. 2002-67 on electronic signature , electronic commerce , electronic signatures in Ecuador has the same status as handwritten signature provided it meets the following requirements :

   1.- Being unique
   2.- Allowing unequivocally verify authorship and identity of the signatory
   3.- the method of creation and verification is reliable, secure and unalterable for the purpose  for which the message was generated or communicated.
   4.- At the time of creation of the electronic signature data with which it may be created are found under the exclusive control of the signatory,
   5.- The firm is controlled by the person to whom it belongs.
Therefore, an advanced electronic signature in Spain, in this country is simply called electronic signature, without having  an equivalent to the simple electronic signature.

7.- El Salvador 

Only fifteen days ago,  the draft of  Electronic Signature Act was approved. In this country , it is called certified electronic signature which in Spain is called advanced electronic signature, which is fully valid. On the other hand , includes the concept of digital signature, but referring to cryptographic methods rather than sign itself relate to the PIN of credit cards etc.

As you can see the concepts vary from country to country and as mentioned at the beginning of the post, the legislative development as well. Next week, we will continue analysing the situation of the electronic signature in LATAM,  presenting the resto of the countries.