Atualizado: Mai 3
The electronic documents used in Brazil have replaced the physical ones as companies advance in their digitalization process, giving preference to devices that facilitate not only the production, modification and sending of such documents, but also the storage and access to them. This process is fundamental for companies that wish to be in sync with the demands of the present times.
Although the discussion about the validity of electronic documents and signatures in Brazil has recently taken on greater proportions, the country already has a substantial legislative record in this regard.
In 1968, the Microfilming Law (5,433/68) was created, through which the microfilming of private and official documents on file was authorized throughout the national territory, provided that the original document's matters were preserved.
Provisional Measure 2200-2 of 2001 allowed the use of digital certification as a way to guarantee the authenticity, integrity and legal validity of electronic documents.
The Civil Code of 2002 brought, by article 225, the possibility of using electronic documents as a means of proof when establishing that mechanical or electronic reproductions of facts or things make full proof of these.
The 2015 Code of Civil Procedure also stipulates, in article 439, that the use of electronic documents in the process will be permitted. National jurisprudence also accepts electronic documents (signed electronically as well) as valid and effective evidence.
Last year, Decree 10.543/2020 was published, which provides for the use of electronic signatures in the federal public administration and regulates the minimum level required for signing in interactions with the government.
The use of physical documents and signatures has become rare due to the current scenario, which has no longer allowed two or more people to meet in the same (physical) environment to do business and conclude contracts. Everything is done electronically (from the making of the document, to the signature, filing and disposal).
Electronic documents vs. scanned documents
It is important to differentiate electronic documents from scanned documents, as they have different uses from each other. The name “electronic document” means any and all records that are originated in an electronic (non-physical) environment, by means of which it is possible to identify the annotation of data or facts, the authorship of such annotation and possible adulterations.
The digitized document, on the other hand, is the one that, originally physical, is produced in electronic media, thus converted to digital format.
The biggest difference between them is that while the electronic document is characterized by the encoding of binary elements and its access by the computer system (for example, a virtual contract), the digitized was born in the physical world, but for some reason became digital, without having all the encodings of an electronic one (for example, a scanned certificate).
Are both legally valid?
Telling both documents apart is important especially when verifying the veracity and authenticity of the registered content. The electronic document is proven to be true precisely by the binary characteristics and information by digits that created it.
The scanned document is considered to be true and authentic when physically checked at notary offices or by signatures made with paper and pen; in other words, when scanning a physical document, veracity verification is no longer possible, since the nature of this information did not occur in the electronic environment. The verification of the authenticity of an electronic document follows the same idea: when printing an electronic document, it is no longer possible to find the binary information that created that document, as this is only possible in the electronic environment.
Therefore, with the possibility, then, of identifying the veracity of the content registered in the electronic document, as well as its authorship and eventual changes, it is concluded that the electronic document has legal validity.
Know more about the topic in our booklet Electronic Documents in the Judicial Environment. You can download it by clicking here.
What about the electronic signature?
The electronic signature is nothing more than a personal and irreproducible code that guarantees the inapplicability of fraud. It also makes it possible to recognize the origin of the document and whoever produced it, guaranteeing the security and integrity of the information contained in that document.
Like the scanned document, the scanned signature cannot be confused with the electronic signature. This is because the digital signature is just a reproduction, without legal validity (as there are no means of verifying its veracity and authenticity), of a physical signature. The electronic signature, however, works in the same way as electronic documents, that is, they are registered in the electronic environment, making it possible to identify the author, the date of signature, who passed that document and where it was created.
Benefits of using electronic documents
The increasing use of electronic documents by the business community and the abandonment (almost complete) of physical files (culture known today as paperless), added to the ease and time gain that electronic documents brought to the routine, there are also the savings generated with the reduction in expenses with ink and maintenance of printer, cartridge, etc., in addition to contributing to the conservation or non-pollution of the environment, making the company, in addition to being economical, less polluting.
The insertion of technological devices in business has taken companies to other levels, boosting remote work and taking digitization to customer service, which fosters a culture that tends to be maintained from now on.
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Caterina Formigoni Carvalho
Post-graduated in Innovation Management and Digital Law, Fundação Instituto de Administração (FIA).
J. Rubens Scharlack
Lawyer licensed in São Paulo (USP), with an MBA from Fundação Armando Alvares Penteado and University of New Mexico Anderson School of Management, and attorney in the United States (licensed in Florida) with J.D. cum laude and LL.M. in Taxation (University of Miami School of Law - UM).
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