The electronic signature is a tool that allows the receiver of a document to identify and verify its author and that has the same legal value and generates the same effects of a hand written signature.

Its use and diffusion are given by the possibility of cutting down costs and time that usually come with the manual signature and accelerate the operations, whilst guaranteeing at the same time the authenticity, trust, security and legal validity of what is being subscribed.

In the same way, the recognition of the digital signature in different countries will allow to carry out transnational activities.

The electronic signature: Regulation in Chile

The use of the electronic signature in Chile is regulated by the law 19.799 on Electronic Documents, Electronic Signature and Certification Services of the mentioned signature, promulgated on the 25th of March of 2002, and by the Supreme Decree Nº181/2002 Ministry of Economy, Promotion and Reconstruction.

The law distinguishes between two types of electronic signature, the electronic signature and the advanced electronic signature. According to article 2 of the Law 19.799, the electronic signature is “any sound, symbol or electronic process, that allows the receptor of an electronic document to identify at least formally its author”. On the other hand, the advanced electronic signature (AES) is “the one certified by an accredited service provider, that was created using means the owner maintains under his exclusive control, in a way that it’s linked exclusively to it and to the data it refers to, allowing the detections following any modification, verifying the identity of the owner and preventing that the integrity and authority of the document are rejected”. The latter grants legal validity to the documents subscribed, recognizing the possibility of being used as evidence in a trial (article 5). As we will see further on, it must be certified by a service provider accredited by the Ministry of Economy. Public documents must be signed with advanced electronic signature (article 4).

In general, all acts and contracts subscribed by a natural or legal person with electronic signature will have the same value and will generate the same effects of a manual signature, with the exception of the following cases, (article 3):

• When the law requires a solemnity that cannot be complied with an electronic document;
• When the law requires the personal attendance of the parties, and
• Cases involving family law.

The 4th Title of the mentioned law regulates the certification of the electronic signature. Article 15 identifies the following as essential elements of an electronic signature certification:

a) A unique identification code of the certificate;

b) Identification of the certification service provider, with indication of name or company name, unique tax number, e-mail, and, if it’s the case, the accreditation information and corresponding advanced electronic signature;

c) The owner’s identity data, among which must be necessarily included name, email, unique tax number, and

d) The period of validity.

The same provision foresees that the certificates of advanced electronic signature issued by entities not established in Chile have the same value of those issued by service providers established in the country, if the mentioned entities have homologated them under their own responsibility and in compliance with the requirements established by this law and its regulation or under an international convention ratified by Chile and currently in force.

Article 16 contemplates the cases in which the electronic signature certificate becomes ineffectual, that is, when the period of validity expires (it cannot exceed three years from its emission), when the service provider revokes it, for cancellation of the accreditation and of the service provider’s inscription in the registry of the accredited service providers and for voluntary termination of the non-accredited service provider’s activity. In these cases, until it’s not eliminated from the publicly accessible register, the certificate cannot be held against thirds.

The Title VI regulates the rights and obligations of the electronic signature users. The users have the rights, among others, of being informed by the certification service providers about the creation and verification of the electronic signature, about the price of the certification services, about the termination of the service provider’s activity with at least 2 months of anticipation. In the same way the user has the right to the confidentiality in the information provided, to transfer data to another service provider and access to the service of the accredited providers.

Under Title III, articles 11 and subsequent regulate the obligations of the accredited service providers of the electronic signature certification whilst Title V concerns their accreditation and inspection, indicating the conditions with which the provider must comply in order to provide its services.

Giorgia Vulcano, Lawyer.

Picture: Julien Lavallé (CC0)