Nowadays, technology solutions are essential to execute various transactions. Consumers and businesses are increasingly connected, and it is necessary to adopt quickly, taking care of the legal requirements that are needed to use digital technologies.
The Federal Consumer Protection, recognizes the use of technological solutions to ensure the consumer’s right to electronically approve any transactions.
Article 10 – Suppliers may not […] provide additional services to those originally contracted that have not been expressly requested or accepted, in writing or electronically, by the consumer, nor may they apply charges without prior consent of the consumer or that are not derive from the corresponding contract.
For its part, the Commercial Code mentions that when the law or the parties agree on the existence of a signature in relation to a data message, said requirement will be understood to be satisfied if an electronic signature is used that is appropriate for the purposes for which it is generated or communicated that data message.
Article 97.- When the law requires or the parties agree to the existence of a Signature in relation to a Data Message, said requirement will be understood to be satisfied if an Electronic Signature is used that is appropriate for the purposes for which it was generated or communicated. Data Message. The Electronic Signature will be considered Advanced or Reliable if it meets at least the following requirements:
- The Signature Creation Data, in the context in which they are used, correspond exclusively to the Signatory;
- The Signature Creation Data were, at the time of signing, under the exclusive control of the Signatory;
- It is possible to detect any alteration of the Electronic Signature made after the moment of signature, and IV. Regarding the integrity of the information in a Data Message, it is possible to detect any alteration of it made after the moment of signing. The provisions of this article shall be understood without prejudice to the possibility for any person to demonstrate in any other way the reliability of an Electronic Signature; or present evidence that an Electronic Signature is not reliable.
What is the Advanced Electronic Signature?
There is a simple distinction between the simple electronic signature and its advanced form. In Mexico, the electronic signature is required to be authenticated by a digital certificate. However, this type of signature is used mainly in specific transactions required by the federal government, such as the Secretaria de Hacienda y Crédito Público.
Therefore, most commercial and business transactions only need a simple electronic signature to ensure the legal validity of any contract.
The Advanced Electronic Signature Law bases its use and validity in Mexico. According to this law, any electronically generated document or data message may use this type of electronic form.
Article 7 – Electronic documents and data messages that have an advanced electronic signature will produce the same effects as those presented with an autograph signature and, consequently, will have the same probative value that the applicable provisions grant to them.
According to the Advanced Electronic Signature Law, the following characteristics are necessary for advanced electronic signatures:
- Functionality: It effectively satisfies the requirement of the autograph signature and said signature corresponds exclusively to the signer (equally applicable to the simple electronic signature);
- Authenticity: It allows to show that signer of the electronic document is who he claims to be. This can be guaranteed, for example, with the confirmation of tokens, IPs, identification documents etc;
- Integrity: It allows to guarantee by technological means that the content of the document has not been altered after it was signed;
- Neutrality: The electronic signature uses digital certificates and does not exclude or restrict any certifying authorities;
- Non-Repudiation: Ensures that the issuer of the document cannot deny the authorship of the signed content;
- Confidentiality: It guarantees that only the signer is able to consult the content of a document.
One of the most important requirements of advanced electronic signatures is the existence of a digital certificate. This tool establishes the possibility of a transaction between a public key and a private key.
Gloria Ponce de León & Hernández