Digital Signatures: Legal Background

What is the electronic signature?

According to the Supreme Court "it is the simplest mechanism that allows identifying, at least formally, the author of a document." Supreme Court, April 18, 2011. For the Legislator it is “any sound, symbol or electronic process, which allows the recipient of a document to at least formally identify its author” Art. 2˚ Law 19,799, on electronic documents, electronic signature and services certification of said signature.

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What is the Advanced Electronic Signature (FEA)?

Law 19,799 establishes the advanced signature as a signature certified by an entity accredited to the Ministry of the Economy and its main characteristic is that it has the character of INOPONIBLE , that is, the person who signs cannot ignore the act, as well as the signature before a notary public. .

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In February 2019, the possibility of obtaining an advanced signature certificate remotely by telematic means was established by means of a supreme decree, for which the unique password must be used, plus a second authentication factor.

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Are electronic documents a different category from public and private?

No, they are not a new category. The text of the third article originally proposed by the executive stated in its initial part that "The acts and contracts, granted or executed, by natural or legal persons, public or private, by means of an electronic document, will be valid in the same way and will produce the same effects as those celebrated in writing and on paper ". This wording emphasized the electronic document and not the electronic signature.

In consideration of the above and in order not to alter the substantive rules on the way in which acts and contracts have to be signed, said wording was modified to grant validity to all acts and contracts signed by means of electronic signature, with the exceptions that in such item are noted. In this way, the first part of the first paragraph of the third article, was thus:  "Acts and contracts granted or entered into by natural or legal persons, signed by means of electronic signature, will be valid in the same way and will produce the same effects as those entered into in writing and on paper."

What is the legal validity of the electronic signature?

Documents signed by electronic signature  they produce the same effects as the documents signed on paper support , being able to be presented in court and, in the event that they are asserted as evidence, the following rules are followed:

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1.  Electronic documents that have the quality of a public instrument must be signed by means of an advanced electronic signature and will be fully proof according to the general rules;

2.  Those that have the quality of a private instrument, as soon as they are subscribed by means of an advanced electronic signature, will make full proof according to the general rules, except for their date, unless this is recorded through an electronic date issued by an accredited provider;

3.  Electronic documents that have the quality of a private instrument and are signed by electronic signature, will have the corresponding probative value according to the general rules.

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Article 5 of Law 19,799 establishes that it is possible to present them not only as evidence but also, for example, as executive titles. In effect, the text originally proposed by the Executive stated that "electronic documents may be presented as evidence in court ." This text was modified by the definitively approved one, expressly indicating in the discussion in the Lower House that they could also be presented as an executive title, applying the provisions of articles 434 and following of the Code of Civil Procedure with respect to them. The discussion in the Chamber highlights that  "All kinds of electronic documents are admitted in court, which is important to highlight and, of course, a consequence of us giving the same legal value to the electronic signature attached to an electronic document as to the handwritten or holographic signature that appears in a paper document, with material support "  (same article cited above from the Journal of Computer Law).

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In this sense, during the parliamentary discussion of the Law, in Session N ° 54 of the Chamber of Deputies held on April 17, 2001, Deputy Sergio Elgueta stated that: "executive merit is not recognized to electronic documents but that Article 5 indicates that they may be presented as evidence in court and that they will have probative value according to certain rules.Can I present as a title in an executive trial an electronic document, with an advanced signature, recognized or certified by any of the institutions that indicates If one examines article 434 of the Code of Civil Procedure, one finds several documents to which this law would be applied as recognized private instruments: bearer titles, registered titles, settlements, etc. But they would lack executive merit. It is possible to present them, admit them as evidence and evaluate them, why is it not allowed that they are executive titles or that they give rise to a preparation of those judgments? cios ". During the discussion, he also stated that "the executive merit of the document will depend on its nature as a public instrument, as is currently the case with documents on paper." Finally, he added that "contrary to what the bill claimed in the first report, where there was doubt about whether it could only be presented as evidence in court or also, for example, as an executive title, this wording indicates that the Electronic documents may be presented in court, which implies that they can be presented as antecedent, as executive title and also as evidence "  (This is how it is noted in the Memory of the University of Chile, of the memorialist María Paz Trivelli, "Analysis of the principles that inspire Law 19,799, on electronic documents, electronic signature and certification services of said signature").

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What acts or contracts can be signed by electronic signature?

All types of acts or contracts, which are deemed to be written in cases where the law requires them to be recorded in this way.

Exceptionally, the following acts or contracts are not recognized as valid:

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to)  Those in which the law requires a solemnity that is not capable of being fulfilled by electronic document, such as the solemnity of a public deed of the contract for the sale of a property.

b)  Those in which the law requires the personal concurrence of any of the parties.

c)  Those related to family law, such as the contract that regulates child support.

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Is it possible to present a document signed with an electronic signature as evidence in court?

Yes, the procedural opportunity is in the documentary perception hearing regulated in article 348 bis of the Code of Civil Procedure and the probative value assigned to it will depend on the nature of the document and the judgment in question.

Do electronic documents replace the Notary?

Yes, except in the 3 cases of exception: those in which the law requires solemnity that cannot be fulfilled by electronic document; when the law requires personal concurrence of one of the parties; and those related to family law.

What is the legal validity of the electronic signature?

Documents signed by electronic signature  They produce the same effects as the documents signed on paper , being able to be presented in court as evidence.  Electronic documents that have the quality of private instrument will have the corresponding probative value according to the general rules .

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Valid as a means of proof, the following rules are followed:

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to.  Electronic documents that have the quality of a public instrument must be signed by means of an advanced electronic signature and will be fully proof according to the general rules;

b.  Those that have the quality of a private instrument, as soon as they are subscribed by means of an advanced electronic signature, will make full proof according to the general rules, except for their date, unless this is recorded through an electronic date issued by an accredited provider;

c.  Electronic documents that have the quality of a private instrument and are signed by electronic signature, will have the corresponding probative value according to the general rules.