The generalized problems surrounding COVID-19 find Uruguay in a good position regarding digital government, electronic documents and electronic signature, both at a legal level as well as for their practical application.
Just a few years back, scheduling the renewal of a personal identification card, applying for and receiving a cadastral document for a property or a registry certificate, among other things, could only be done in person. However, nowadays it is not strange to do so remotely from home or the office.
Law No. 18,600 dated September 21, 2009 (the “Law”) – with subsequent amendments and pertinent regulations – governed the functioning of the electronic signature and documents, acknowledging their usage as valid and effective, so as to provide not only the practicality which digital tools offer, but also the trust and security necessary to substitute the usual “on paper” documents.
Thus, most public offices have currently switched to digital in their systems for procedure scheduling and even for the procedures themselves, as well as for the issuance of documents. Likewise, those offices that prior to COVID-19 had not implemented this change have started it in these weeks, driven by the current reality.
The electronic signature aims to be equivalent to the handwritten signature, but avoiding the physical presence of those involved (people or enterprises), leaving no doubt that it constitutes a great contribution for the social isolation regime recommended by the government. Moreover, not only is it useful for public procedures and the issuance of documents by public entities, but it can also be an alternative in contractual matters.
In order to understand better the validity of electronic documents and the electronic signature, following is a brief description of the regulations in that regard.
What is the Electronic Signature?
The Electronic Signature is a tool which allows signing digitally with the same value as the handwritten signature. It is not a drawing that is incorporated to a document; that is, the digital image of a handwritten signature is not an Electronic Signature.
What is the difference between the Electronic Signature and the Advanced Electronic Signature?
Uruguay makes a distinction between the Electronic Signature and the Advanced Electronic Signature.
The Electronic Signature is the “common” one involved in using any valid electronic means: using a credit card, clicking on a checkbox on the computer, signing with an electronic pencil, entering a user and password. Such a signature will have legal effectiveness when the parties involved accept it as valid or when it is accepted by the person with whom the document is filed. That is, the parties are free to agree upon the acceptance or not of documents signed with an Electronic Signature.
The Advanced Electronic Signature represents a more sophisticated stage as far as the authenticity of the document is concerned, since it does not require any kind of agreement between parties and, by law, it has the same value as the handwritten signature certified by a Public Notary. This signature includes specific technological requirements, involves digital certificates and requires the use of a device for safe creation of a signature called a token (similar to a USB mass storage device), but easily accessible for anyone.
In line with the digital trend, the new Uruguayan ID card has included an Advanced Electronic Signature that may be used by people of legal age who have obtained it, in order to sign documents electronically and carry out government procedures online. This use of the ID card had already been implemented for reporting wills and, given the need to speed up procedures in the current situation, some entities took a swift turn towards that same trend. For example, nowadays it is possible to request a municipal certificate or encumbrances certificate from the Municipality of Montevideo remotely using the ID card; the same is currently being implemented for legalizations with the Ministry of Foreign Affairs.
When can I use the Electronic Signature?
Pursuant to the Law, electronic documents will have the same legal value and effects as written documents and may be used without limitations both in the private and public spheres, unless otherwise prohibited by law.
Notwithstanding the above, there are currently still some practical obstacles in using electronic documents. Yet having a legal framework already delineated facilitates a necessary future adaptation of certain scenarios in order to mitigate the obstacles that social isolation, or an eventual mandatory quarantine, may pose for executing certain documents. An example could be the complete digitalization of the Public Registries, even for filing documents. The General Registries Office has been advancing rapidly on the migration process for this.
Many adverse situations such as the one we are currently going through leave us teachings or positive consequences. Hopefully one of those will be moving further along the path to greater digitalization that the country has already taken. The framework already exists and, undoubtedly, its application is gaining ever more space. AGESIC (the Agency for Electronic Government and the Information and Knowledge Society) has joined the different State entities in this digital migration process for some time now, so it will surely continue fulfilling a fundamental role in every such advancement.
Is the Electronic Signature applicable in the role of the Public Notary?
The Law authorized the use of electronic documents and Advanced Electronic Signature in the notarial function and, subsequently, the Supreme Court of Justice, in Order No. 7,831, regulated the framework for performance and the limits that use of the signature must have, likewise determining on which documents the Public Notary may use the electronic system as support.
The notarial documents permitted by the Order to be executed electronically are: notarial electronic transfers (copies of public titles and notarial transcripts of Notaries’ records), electronic notarial testimonies upon exhibition and electronic notarial certificates. Notwithstanding, the only documents currently authorized for issuance in practice are electronic notarial certificates.
However, since the regulatory framework is already in force, considering the current situation, nothing prevents authorization of electronic issuance of other documents by Public Notaries. Likewise, the different public entities that receive notarial documents in public procedures will adapt in the same sense, accepting electronic notarial documents, as does VUCE (single window for international trade formalities), which already took the initiative some time ago.
Even though the objective is to combat the pandemic swiftly and avoid future similar events demanding social distancing as a way to tackle them, it is important to know that Uruguay has tools that, while still not widely used, are on track to collaborate in lessening the impact of necessary social isolation on the economy. Nonetheless, taking into account today’s global reality and the benefits offered by the digital world, we have no doubt that moving towards digitalization is the way, not only in circumstances like the ones at hand that leave us no choice, but rather as the way laid out by laws currently in force, on which we should focus efforts.