Law 14,063/2020, originated from the Provisional Measure 983/2020 (“MP”), was sanctioned by the president Jair Bolsonaro and published in September 24. The Law allows new forms of electronic signatures in addition to the signature with the use of digital certificate, in transactions involving the public administration. Such new forms of electronic signatures have the same legal value as signatures on paper and aim to simplify and reduce the bureaucracy on the relationship between the citizens and the government. The Law will apply to (i) the internal communication among the bodies and entities of the direct, autarchic and foundational administration of the Government and autonomous bodies of the federative agencies; (ii) the communication among private individual or legal entities and the public entities indicated in item (i) above; and (iii) the communication between the public entities indicated in item (i) above.
Electronic signatures will be classified according to the risk levels of the documents to be signed, within three types, as follows: (i) simple, which (a) allows the identification of the signor, and (b) attaches or associates data to other data in the signor’s electronic format; (ii) advanced, which (a) is associated with the signor in an unambiguous way, (b) uses data for its creation allowing the signor, with a high degree of security, to operate under its exclusive control, and (c) allow the detection of any modification after the signature on the document; and (iii) qualified, which uses the digital certificate, under the terms of Provisional Measure No. 2,200-2/2001.
The Law establishes that each entity of the Public Power or autonomous body of each federative entity will define the type of signature that will be accepted, subject to following guidelines:
- Simple electronic signatures may be used in any interaction with a public entity that does not involve information protected by confidentiality.
- Advanced electronic signatures will be accepted whenever simple electronic signatures are accepted and also in interactions with a public entity that involves information protected by secrecy, and in the registration of acts with the board of commerce.
- Qualified electronic signatures will be required in acts relating to the transfer and registration of real estate; in normative acts signed by the heads of the Government, Ministers of State or by autonomous bodies of a federal entity; and in the other cases provided for by law.
The original text required an advanced electronic signature (for individuals and individual microentrepreneurs) or a qualified one (other subjects) in situations of interaction with a public entity that involved information protected by confidentiality, but this provision was vetoed with the justification that the requirement would make numerous public administration initiatives unfeasible. The requirement for qualified electronic signature for transfer of motor vehicles was also vetoed.
It is important to note that, during the period of the COVID-19 pandemic, acts of the Public Power or of any autonomous body regarding the use of electronic signatures with levels of security incompatible with the guidelines defined by the Lei may be accepted. Such provision is intended to reduce face-to-face contacts and allow the performance of acts that would not otherwise be possible to occur.
Furthermore, the Law determines that the new forms of signature are not applicable to: (i) lawsuits; (ii) in communications (a) between private individuals and legal entities; (b) in which anonymity is allowed; and (c) in which the identification of the individuals is waived; (iii) public entities’ ombudsman systems; (iv) assistance programs for victims and witnesses under threat; and (v) in other cases in which it is necessary to guarantee confidentiality of the individual’s identity when acting before the public entity.
In relation to medical documents, such as certificates and others, advanced and qualified electronic signatures will be accepted. The hypotheses and criteria for the validation of medical documents will be specified by an act of the Minister of Health or of the Collegiate Board of the Brazilian Health Agency (“Anvisa”), according to their competencies.
The most relevant change in the area of health concerns the criteria for issuing medical prescriptions, in which the obligation to write in ink was replaced by the need to include the professional’s electronic signature in the prescription issued electronically. Such format of prescription shall also observe the requirements defined by the Collegiate Board of Anvisa or the Minister of Health.
The Law also has provisions regarding the source code of the software developed by the public administration, defining that all will be governed by an open source license, allowing it to be shared with public agencies and entities. Exceptions to the rule apply to systems whose source code has restricted access to information; data stored by information and communication systems; components owned by third parties; and systems development contracts signed before the Law became effective and which contain a clause that does not allow an open source license.
Physical signatures continue to be valid and the public bodies are not required to adopt the new means of electronic signature established by the Law. Systems that already use digital signatures must be compliant with the new rules by July 1, 2021. State services that do not establish their own rules will follow the general rules to be defined by the federal government.