Digital signature versus ignorance | profile

New times, old pitfalls. In a world that moves at breakneck speed, in which habits and the nature of relationships have radically changed, the way of concluding contracts, agreeing and generally honoring legal acts has also changed.

Although you may not believe it, in the famous – and sad – December 2001, the Law No. 25,506 This regulates, among other things, the digital signatureas well as electronics. In this regard, and although it is not the task of a standard to “conceptualize”, it warns about what a digital signature is, an electronic signature and what value each of them has.

A digital signature is a signature that is subject to the “absolute domain” of its owner and can be verified by third parties, it is equated with this holographic signature (that of “handwriting”) and is therefore not to be rejected. This means it must not be unknown, otherwise a handwritten signature cannot be required.

The government has made changes to digital signature registration: it can be done remotely

The law establishes this in the third article, providing that “if the regulations require a handwritten signature, this requirement will also be satisfied by a digital signature, a principle that extends to all cases in which a signature is required or consequences for the absence of a signature are foreseeable.”

The clarity of the rule leaves no doubt: if it is a digital signature (but not an electronic one, the concept of which can confuse us), its value is identical to that expressed in the manual signature on any medium.

Your turn comes first Ministry of Modernizationand in less than half an hour (with a smartphone and the appropriate requirements) the biometric data is verified and the digital signature”

However, we find ourselves in cases – yes, even from state authorities, as happened to the person who subscribed to this column with judges – where the value of that signature is unknown, despite the crystal clear clarity of the law. It is therefore important that every organization, whether public or private, is adequately trained in this regard, because what the basic national standard stipulates with sufficient clarity cannot be ignored.

For example, can a bank force me to sign by hand if I have a digital signature due to “company policy”? The truth is that no.

An electronic signature is a signature that the signatory uses as a “means of identity,” but which lacks all of the requirements for a digital signature.

In general, we find excuses for refusal, such as “this is not our policy” or “we only accept holographic signatures”, when in reality the law is unknown, which is invalid in our legal system (Article 8 of the Civil and Commercial Code). Of course, this applies as long as we do not have a specific legal requirement (which is usually not the case).

In return, the term must also be clarified “electronic” signature“, which is used synonymously as a synonym, but which lacks the validity of the digital signature. The law even defines it by exclusion: an electronic signature is a signature used by the signatory as “his means of identification”, but which does not meet any of the requirements for being classified as a digital signature (Articles 5 and 9 respectively).

It is also necessary to clarify: “inserting” a signature into a file (Word, PDF, etc.) is not a digital or electronic signature and has the consequence that the other party interested in our signature does not know about it.

Now, could a digital signature be forged? As with the handwritten signature, the answer is affirmative. The law even provides for a presumption of “authorship”, since it is the responsibility of the holder of the respective digital certificates (those that allow third parties to verify the signature) to prove that they did not create this digital signature.

Now who has a digital signature? Those who carry out the procedure. How is it prepared? Your turn comes first Ministry of Modernizationand in less than half an hour (with a smartphone and the appropriate requirements) the biometric data is checked and the signature is obtained.

Therefore, as I emphasize again, there is a real need to promote knowledge about the very existence of the digital signature, which has been around for 24 years and accelerates transactions remotely: this not only contributes to a society that requires speed in procedures, but also contributes to “depaperization” that collaborates with the environment.

*Lawyer and associate professor at the UADE Faculty of Law