Castellán

The Law recognizes two types of electronic signature; the simple electronic signature and the advanced electronic signature.

A. Simple electronic signature

The simple electronic signature is the most “basic” type of digital signature, which does not require a special authentication or certification process, and is widely used in everyday online transactions or agreements between parties that are not in the same physical location. It can even be as simple as typing the names of the parties in a digital document or checking a box to indicate acceptance.

The Law defines this category as “data in electronic form attached to an electronic document or logically associated with it, used by the signatory as a means of identification.”

Although the definition is broad, there is a requirement that stands as a central axis in its use: the possibility of allowing the identification of the signing party. In this way, the parties can choose the type of electronic signature that best suits their needs: from usernames and passwords, the use of applications, biometrics, “OTP” codes, etc., as long as the use as a means of identification is fulfilled.

For the simple electronic signature to have legal validity, the Law requires that it be accepted as valid by the parties using it, or has been accepted by the person to whom the document is opposed.

This translates into the inclusion of a contractual clause where the parties acknowledge the validity of the electronic signature used, defining the conditions under which this type of signature will be accepted, to avoid setbacks in the execution of the contract or difficulties in interpretation.

An adequate drafting of the contractual clause should then contain:

i) express acceptance of its use by the parties,

ii) express identification of the technology or mechanism to be used for the signature (e.g. OTP code, etc),

iii) statement that its use will have the same validity and produce the same legal effects as the “physical”, handwritten or autographed signature.

It is important to note that, not having an “external” control that guarantees the identity of the signatory - as is the case with the advanced signature - if the simple electronic signature is unknown to one of the parties, it will be up to the other party to prove its validity as an expression of the will of the party seeking to disown it.

For practical purposes, then, the simple electronic signature will be equivalent to a handwritten / autographed signature without certification of signatures, or verifiable identity.

B. Advanced electronic signature

It is an electronic signature that uses more robust authentication and security mechanisms, often using technologies such as digital certificates issued by trusted certification authorities.

It is used in transactions and documents that require a higher level of security and trust, as it usually complies with the specific standards and regulations of different jurisdictions.

Under Uruguayan law, the advanced electronic signature will be one that meets the following requirements:

i) allow the unique identification of the signatory;

ii) be created by means that the signatory can keep under their exclusive control;

iii) be verifiable by third parties;

iv) be linked to an electronic document, so that any subsequent alteration is detectable;

v) have been created using a technically secure and reliable device, and

vi) be based on a recognized certificate valid at the time of signing.

For the operation of this type of signature, and with the aim of generating an “external” control, the Law has created the figure of the “Accredited Certification Service Provider”.

These are providers of advanced electronic signature services, duly registered with the Electronic Certification Unit (UCE), who meet certain security and control requirements required by the regulations. In other words, they will be responsible for validating the identity of the signatory.

The advanced electronic signature will have the same validity and effectiveness as the autographed signature in a public or private document with certified signatures, so - unlike the simple signature - it does not require a prior agreement between the parties to be accepted. That is, a contractual clause is not necessary to consider it valid.

The law equates the certainty of the advanced electronic signature to the intervention of a public notary, regarding the verification of the signatory's identity.

It is important to note that the advanced electronic signature does not provide certainty regarding the date of the signature, unless the service provider expressly provides the electronic dating service.

International recognition of electronic signature

Internationally, not all legal systems recognize the use of the simple electronic signature as a valid mechanism for issuing consent, as opposed to the handwritten signature. Even some, while admitting its use, restrict it to certain types of contracts or impose limitations, so that, sometimes, its use may not be advisable for agreements of a certain magnitude.

On the other hand, the advanced electronic signature generally enjoys greater international recognition, as many countries have adopted specific standards to support and recognize its legal validity, even entering into mutual recognition agreements in terms of validity and evidentiary criteria.

On December 5, 2019, within the framework of the 55th Summit of Mercosur Presidents, the bloc approved the “Mutual Recognition Agreement of Digital Signature Certificates” (the “Agreement”), marking a milestone in the digital integration of the region.

This Agreement establishes the recognition of Digital Signature certificates issued by accredited certification service providers or licensed certifiers in any Mercosur country. Thus, digital signatures - understood as those we define as advanced electronic - issued in Uruguay, obtain the same legal and evidentiary value as handwritten signatures in all countries of the bloc (and vice versa).

Until last week, this agreement had only been ratified by Argentina, Paraguay, and Uruguay. However, on April 3, 2024, the Agesic (Electronic Government and Information and Knowledge Society Agency) announced that Brazil had finally approved the Agreement, thus culminating a significant regional process that allows recognition among the four founding countries of the bloc.

Final reflections

It is undeniable that electronic signature has gained more and more ground in the business world due to the increasing internationalization of activities and the need to reduce procedures, costs, and time.

Uruguay has had a solid regulatory framework for several years to allow its use and, at the same time, provide legal security for the parties involved.

On the other hand, the agreements adopted internationally for the mutual recognition of digital signature certificates facilitate a safe, reliable, transparent, and efficient cross-border exchange that, we believe, allows to streamline transactions and boost business productivity and competitiveness.

In this context, we welcome Brazil's recent adoption of the Mercosur Agreement, as it constitutes another milestone in the process of eliminating barriers to exchanges, without neglecting the necessary security and guarantees.

Montevideo, April 8, 2024