Electronic signature: for STJ, ICP-Brasil key is not necessary

At the end of September, the Superior Court of Justice (“Superior Tribunal de Justiça” or “STJ”), when judging Special Appeal No. 2149442-PR (“Appeal”), decided that the use of an entity not accredited with the ICP-Brasil key to perform an electronic signature on a credit certificate is legally valid. Check out the details of the decision below!

The Appeal, filed by an investment fund (“Appellant”) against a natural person (“Appellee”), originated from a search and seizure action based on a Bank Credit Certificate (“Cédula de Crédito Bancário” or “CCB”) with a fiduciary assignment agreement, then documented and signed electronically by the parties through the Clicksign platform (without a digital certificate with an ICP-Brasil key). The action had been filed by the Appellant (also a creditor of the CCB) against the Appellee (debtor of the CCB).

In the context of the search and seizure action, the first instance judge dismissed the action without judging the merits of the case based on the “impossibility of validating and/or authenticating the alleged electronic signatures of the agreement and the endorsement of the instrument after an attempt, ex officio, to carry out the validation”. The Appellant appealed, and the first instance judgment was upheld; the motion for clarification was also rejected.

Therefore, the Appellant filed the Appeal before the STJ, arguing that the judgment violated Article 10, paragraph 2º of Provisional Measure No. 2200/2001 and that the platform used had been stipulated as valid by the parties when issuing the CCB.

In this context, Minister Nancy Andrighi understood that the certification process by the ICP-Brasil system does not exclude other means of legal validation of electronic documents and signatures, which is expressly provided for in paragraph 2º of Article 10 of Provisional Measure No. 2200/2001.

Thus, although Law No. 14063/2020 provided for security levels for electronic signatures (simple, advanced, and qualified), the Minister understood that the legislator intended to create different levels of evidentiary force for electronic signatures and, at the same time, to grant legal validity to any electronic signature, considering (i) private autonomy; and (ii) the freedom of forms of declaration of wills between individuals.

Furthermore, the Minister argued that the recognition of legal validity and probative force of documents signed and issued electronically with any level of security, as long as it is possible to infer or audit the signature or document, is already a position that has been adopted by STJ.

Even though the Minister understands that the advanced electronic signature (such as the one used in the case) has a lower presumption of veracity than the qualified one (which uses the ICP-Brasil Key), the advanced one has a reasonable burden of evidentiary force and, more importantly, legal validity identical to a document with a physical signature.

In this case, since the parties expressly agreed that the CCB would be signed by a platform indicated by the Creditor, and since the Creditor indicated the Clicksign platform, it cannot be said that the platform would not be valid because it does not have an ICP-Brasil Key. Furthermore, there is a presumption of agreement of wills regarding the use of the indicated method.

Regarding the authenticity of the Appellee’s signature, the Minister argues that the platform report contains several validation factors. Therefore, the fact that the First Instance Court was unable to validate the document is not sufficient to presume adulteration of the signatures for two reasons: (i) it is not the judge’s role to perform such conference, which should be done by one of the parties (the judge’s participation is prohibited by Article 139, I of the Brazilian Code of Civil Procedure); (ii) there are sufficient elements that indicate the veracity of the signature. Also, the document used by the Judge to perform such conference had been removed from the records (copy) and is not the original received by the parties, and only the latter could indicate the real authenticity of the document.

Finally, the Minister understood that both the advanced and qualified signatures are valid, differentiated only in the aspect of probative force, which is why she granted the appeal, annulling the appealed decision and ordering the return of the case to the court of origin so that the search and seizure action could proceed.