Alejandro Anderlic/Carlos Oteiza

Argentinean Digital Signature Act Published

On December 14, 2001, Law N 25,506 (the "Digital Signature Act" or the "Act") was published in the Official Gazette.

The Act will become effective after eight days following its publication and must be regulated by the Executive Power within 180 days of its date of publication. The Head of the Cabinet of Ministers is the enforcement authority of the Act. Until now, the handwritten signature of the parties was required for a private document to be valid. However, such a requirement did not mean that an unsigned document lacked validity if, together with other means of proof, it was possible to demonstrate what the content of such a document was. The Digital Signature Act tends to give digital signatures similar effects to those of handwritten signatures, subject to the terms of the Act.

A digital signature should be capable of verification by third parties, so as to identify the signatory of the document and to detect any alteration made to the digital document after its execution. The Act delegates the determination of the procedures to be used to that purpose on the enforcement authority, such procedures to follow international technological standards.

Also, the Act presumes, unless otherwise proven, that a digital signature belongs to the holder of the digital certificate that allows verification of such a digital signature and that such a digital document has suffered no modifications since its execution. A digital document with an appended digital signature sent by automated means using a programmed device is presumed originated by the sender, unless otherwise proven.

Both electronic documents signed digitally and digitally signed digital copies of originals of a different nature shall also be deemed original documents and be valid proof of the contents therein, subject to implementing regulation. When the law requires that documents, registries or data must be kept, such an obligation will also be satisfied by keeping digitally signed digital documents - in accordance with pending regulation - as long as such files can be reached for future consultation and that the origin, destination, date and time of their creation, delivery and/or receipt can be duly determined.

In order for a digital signature to be valid, the Act requires:

  • that the signature be created during the term of validity of a valid digital certificate held by the signatory. A "digital certificate" is a digital document signed digitally by a certifying authority linking the holder to information permitting signature verification. The Act also contains requirements for the validity of digital certificates and provisions related to the acknowledgment of digital certificates issued by foreign certifying authorities. The relationship between the licensed certifying authority and the holder of the certificate shall be governed by the contract between the parties and applicable law;
  • that the signature be duly verified by reference to the digital signature verification data indicated in such a certificate, in accordance with applicable verification procedures;
  • that the digital certificate has been issued or acknowledged as such by a licensed certifying authority. The Act defines "licensed certifying authority" as any legal entity (not an individual), public registry of contracts or governmental agency in charge of issuing digital certificates or providing other services in connection with digital signatures and which is licensed to do so by the licensing authority, which license shall be non-transferable. The Digital Signature Act has not determined who is to issue the licenses and, therefore, the matter is to be determined by the enforcement authority. Also, the Act contemplates that the private entities authorized to certify digital signatures will provide such services on a non-exclusive basis.

Digital signatures may not be used to express

  • a person's last will,
  • legal acts ruled by family law,
  • strictly personal acts in general,
  • acts requiring certain formalities that are legally or contractually inconsistent with the use of a digital signature.

In addition to digital signatures, the Act defines an "electronic signature" as a set of data in electronic form that is integrated, linked or associated logically to other electronic data used by a signatory as his/her means of identification, but does not fulfill the legal requirements to be deemed a digital signature (i.e. absence of a digital certificate or of when the backing digital certificate has expired). Should an electronic signature be challenged, proof of its authenticity falls to the party alleging it to be valid.

Although the use of digital signatures has already been admitted in certain Government areas, the Act provides for the use of the technologies and provisions of the Digital Signature Act by the National Government for internal purposes and also when dealing with procedures involving private parties, subject to the implementing regulation.

Alejandro Anderlic/Carlos Oteiza, Estudio O'Farrell, Buenos Aires.

MMR 2002, Heft 4, V