The decision of the Superior Court of Justice (STJ) in Special Appeal (REsp) No. 2.159.442-PR raised important reflections on the effect of digital signatures outside the ICP-Brasil system, with direct implications for the formalization of banking contracts.
The Third Panel of the Superior Court of Justice, through the report of Justice Nancy Andrighi, recognized the effect of electronic signatures through a digital platform not certified by ICP-Brasil. The decision was hinged on Provisional Presidential Decree (MP) No. 2.200-2/2001, which allows other forms of proving the authenticity and integrity of electronic documents, as long as they are accepted by the parties involved.
The Reporting Justice argued that MP No. 2.200-2/2001 does not provide for the mandatory use of ICP-Brasil certification for digital signatures to take effect. She also stressed that “Denying legal effect to a commercial paper, issued and signed electronically, simply because signature authentication and documentary integrity was performed by an entity not accredited in the ICP-Brasil system would be the same as denying legal effect to a check issued by the bearer and whose signature was not notarized for authenticity, evidencing excessive formalism in the face of the new reality of the virtual world.”
In addition, the decision pointed out that, as provided for in Paragraph 2 of Article 10 of MP No. 2.200-2/2001, the “use of another means of proving authorship and integrity” is allowed, and the expression “means of proving” invariably outlines the evidentiary force of what is intended to be proved.
Furthermore, the Justice underlined that there is no prohibition on the use of other means of digital signature, as long as they are “admitted by the parties as effective or accepted by the person to whom the document is addressed,” as established by the said Provisional Presidential Decree. Therefore, it would be up to the other party to point up any document forgery.
The STJ’s decision has significant implications for the banking industry, where the digitalization of transactions is increasingly prevalent. Financial institutions often use digital platforms to formalize contracts. With this decision, banks and consumers will be able to use digital signatures from platforms not certified by ICP-Brasil, as long as they guarantee the necessary security. This is intended to speed up processes, cut costs, and increase operational efficiency.
Despite the flexibility, it is essential that financial institutions ensure that the technologies used meet the necessary security and authenticity standards. In the case under scrutiny of the Superior Court, the use of SHA-256 encryption algorithm was a relevant factor for accepting the digital signature.
Besides, the common practice of transactions signed using a mobile device, ATM, bank card, and personal password also indicates how there is nothing illegal about concluding the relationship digitally, keeping up with technological advances.
The STJ’s decision in REsp No. 2.159.442-PR marks a significant advance towards accepting digital signatures outside the ICP-Brasil system, thus promoting greater flexibility and adaptability to new technologies in the banking industry. Consumers and financial institutions should be abreast of this new reality, ensuring that the legal effect of electronic documents is preserved.
Superior Court of Justice. REsp No. 2.159.442-PR.
Provisional Presidential Decree No. 2.200-2/2001.
Author: Matheus Medeiros Maciel, Partner of law firm Ernesto Borges Advogados. Holding an undergraduate degree in Law from Faculdade Estácio de Sá, and a graduate degree in Civil Procedural Law from the School of Law of the Federal Prosecution Office.
Autor: Matheus Medeiros Maciel • email: matheus.maciel@ernestoborges.com.br
