Inadmissibility of using a digital signature to appeal

STJ - Civil Procedural Law

The RMS informs the Superior Court of Justice’s decision: The appeal filed is not admissible by affixing the attorney’s digital signature. At the outset, it is important to note that the digital signature is not to be confused with the electronic signature, which, under the terms of art. 1, § 2, III, “a” and “b”, of Law 11.419 / 2006, must be based on a digital certificate issued by an Accredited Certification Authority, in the form of the specific law or upon registration of a user in the Judiciary, as disciplined by Organs specific organs. This prior registration, either before the certifying authority or before the organs of the Judiciary, aims exactly to safeguard security in the identification of users and the authenticity of signatures made by electronic means. In this way, the digital signature will have the same value as the original signature, made by the lawyer himself, in the procedural document. The hypothesis of the digitalized signature is different, normally made through the scanning process, in which, as already consigned by the STF, there is “a mere electronic seal without any regulation and whose originality is not possible to affirm without the aid of technical expertise” (AI 564.765 -RJ, First Class, DJ 3/17/2006). Indeed, the reproduction of a signature, by scanning, without any regulation, is risky in that it can be done by anyone who has access to the original document and inserted in other documents. Thus, there is no guarantee of authenticity. It should be noted that the possibility of using the method of digitizing signatures is not being definitively ruled out. It appears, only, that it lacks regulations that provide it with the necessary security to practice procedural acts. Although, in modern procedural science, the principle of the instrumentality of forms is enshrined, its application must find limits exactly in the principle of legal certainty. It is not a matter of privileging form by form, but of giving jurisdictional users, users of modern electronic tools, the minimum criteria to guarantee the authenticity and integrity of their identification when filing an appeal or filing another procedural document. That said, the resource whose signature for identifying the lawyer was obtained by digitalization is considered as non-existent. REsp 1,442,887-BA, Min. Nancy Andrighi, judged on 5/5/2014.