As we mention last week, due to the changes in the electronic signature regulation in Europe that will be in force in 2016, we want to have a look into the current status of electronic signature in LATAM. Last week, we brought you the first part of this article and this is the second part.
Before we begin, we would like to make two clarifications:
1.- 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.
2.- The name of what we known as Electronic Signature and Advance Electronic Signature in Spain, change from country to country. However, it is important to highlight that due to the similarities with Spanish legal framework in that field, many countries of LATAM use similar terms to Spain.
Now we are going to review the rest of countries of LATAM:
In this country, the legal framework is determined by Law 47-2008: Recognition Act Communications and Electronic Signatures, without further modification occurred.
According to this law, a distinction between electronic signature and advanced electronic signature, thus becomes:
Electronic signature: data in electronic form in an electronic communication, affixed to or logically associated with, that can be used to identify the signatory in relation to electronic communication and indicate the signatory’s approval of the information contained in the electronic communication.
Advanced Electronic Signature: electronic signature which meets the following requirements:
- Permit identification of the signatory;
- It is created using means that the signatory can maintain under his sole control;
- It is linked to the data concerned, so that any subsequent change of the data is detectable.
As you can see , the Guatemalan legislation on electronic signature is identical to the Spanish one.
Mexico is one of the countries with the highest volume of business through electronic signature and therefore which is more regularised. The regulations is the Law DOF 11-01-2012 . This law attributes legal value to electronic transactions , thus full legal validity of the advanced electronic signature is given, which is defined as:
‘dataset and characters that allows the identification of the signatory who has been created by electronic means under its exclusive control , so it is uniquely linked to the same data and to respect , allowing any detectable subsequent amendment thereof which produces the same legal effects handwritten signature ‘
Thus, the obligors have to meet two requirements, have a valid digital certificate and have a private key generated under their exclusive control.
In this country the regulations is the Law on Electronic Signature 729, making differentiation between electronic signature and electronic signature certified. The latter being the one that has the same validity as a handwritten signature.
According to these regulations, the electronic signature is defined as:
‘Electronic data integrated into a data message, or logically associated with other electronic data that can be used to identify the holder in relation to the data message and indicate that the holder approves the information contained in the data message.’
The certified electronic signature must meet three requirements to have such legal validity:
- That sign creation data relate exclusively to the holder
- The certificate is recognized on the basis that it has been issued by an accredited provider of certification
- When the secure signature creation device comes from a service provider accredited certification
Nicaragua is another example of very similar to the Spanish legislation.
In this case, the legal framework is defined by two laws and an executive decree, those ones are Law 51 of July 22, 2008, Law 82 of November 9, 2012 and finally the Executive Decree 684 of October 18, 2013. According to this law, we talk about electronic signature and qualified electronic signature.
An electronic signature is defined as: ‘Set sounds, symbols or data linked to an electronic document, which has been adopted or used by a person with the precise intention to identify and accept or accede to the contents of an electronic document’
The qualified electronic signature is an electronic signature that also meets the requirements of electronic signatures and is further supported by a qualified digital certificate.
Panamanian law is a bit different from other cases we have seen so far, since the validity of electronic signatures depends on the importance of the document. Thus, electronic signature is considered generically valid, however, in cases where it is required to perform under gravity signature of an oath, it would be required a qualified electronic signatures.
The law governing the electronic and digital signature is the Law 27269. According to it, we talk about electronic signature and digital signature. Here we present the definitions:
Electronic signature: electronic signature should be understood by any electronic means based on symbol used or adopted by a party with the precise intention to link or authenticate a document in compliance with all or some of the functions of a handwritten signature characteristics.
Digital Signature: The digital signature is an electronic signature that uses a symmetric encryption technique based on the use of a unique pair of keys; associated with a private key and a public key mathematically related to each other, so that people who know the public key can not creep her private key.
As you can see, both have binding power between the signatory parties, since even in electronic signatures, can come to recognize as valid as the manuscript.
13.- Puerto Rico
Current legislation in Puerto Rico is the Law 359 of 2004 on Electronic Signature. Unlike most countries that have seen so far, Puerto Rico is closer to the US system than of Spain and therefore to Europe.
According to this law, it recognizes electronic signatures the same legal validity as the handwritten may have, however, must meet the following requirements:
- Identify a natural or legal person, the signatory.
- It is created with data that the signatory maintains under its exclusive control, so that it is unique and individually linked to the signatory.
- Authenticate the signer as the author of any message, document or transaction that is generated or transmitted through electronic means, to which that signature is attached.
- It possible to detect any alteration to the electronic signature, made after the time of signing.
- When one of the objectives of the legal requirement of a signature is to provide assurance as to the integrity of the information that corresponds it possible to detect any alteration made to that information after the time of signing.
- Correspond to an Electronic Signature Certificate valid and issued by an accredited Certification Authority.
As we can see, in Puerto Rico, electronic signature, which would be equivalent to an advanced electronic signature in Spain it is recognized, but no mention is made of what we consider simple electronic signature.
The law in charge of regulating the Electronic Signature Law in Uruguay is the Law 18600. Once again this legislation is very similar to the Spanish one although they difference between electronic signature- in Spain, simple electronic signature- and digital – equivalent to advanced electronic signature-.
Electronic signature: electronic signature is defined as the result of getting through mechanisms or devices biunivocally a pattern associated with an individual and his willingness to sign
Digital signature: It is understood by digital signature, a pattern created by cryptography, cryptographic systems must “key” public “or” asymmetric “or determined by the evolution of technology (digital certificate) used.
All electronic document authenticated by digital signature will be considered as the authorship of the user who is assigned the corresponding private key that mediate unless proof of counterfeit electronic document or disclosure of the password by third parties.
The legal frame comes determined by the Decree Law 1204, of December 13, 2000. These regulation recognises the legal validity of electronic signature that complies with the requirements to be specified below. Unlike other countries legislation, in this case it is contemplated that the lack of compliance with these requirements will result in the invalidity of the electronic signature. The requirements that must be met are:
- Ensure that the data used for their generation can occur only once, and ensure reasonably confidentiality.
- Provide sufficient proof that it can not be forged with existing technology security at all times
- Not alter the integrity of the data message
Thus, the equivalent of an advanced electronic signature which is simply called electronic signature but in Venezuela there is no equivalent to the simple electronic signature is contemplated.
So far, we have reviewed the situation of the electronic signature in the main Latin American countries. Roughly it can be highlighted that the legislation is very similar to the Spanish one in this field and that given the evolution of digital business and globalisation, it is likely that soon these regulations evolve as it is happening in Europe.
See you all next week!