PRINCIPLES OF INTERPRETATION OF ELECTRONIC SIGNATURE IN MEXICO

By Santiago Rivera García

Law Firm Mayer Brown recently wrote a piece[1] about the legal framework of the electronic signature in Mexico—what the law and regulations state about it, what are the principles that should be used when interpreting it, different types of electronic signatures along with their validity and admissibility in court and some good examples on current businesses that are providing the market with ad hoc solutions.

The aforementioned piece also talks about key issues surrounding the electronic signature in Mexico: the different types of electronic signature in Mexico (advanced and simple), the Certification Service Providers, how the electronic signature is Valid as evidence in Mexico, the concept of Certain Date, and some Platforms for Electronic Signature that comply with complex Mexican regulations. They mention WeeSign as one of the few companies which holds deals directly with the Certification Service Providers in order to offer legal validity in all documents signed with WeeSign: “”To date, the Ministry of Economy has authorized six private companies as CSPs, which are identified at http://www.firmadigital.gob.mx/directorio.html. Some of these companies have agreements with third parties who offer the electronic signature and other related services directly to the public (e.g., WeeSign, Mifiel, Firmamex or Doc2Sign).”

The intention of this article is to extend the conversation regarding the main principles of interpretation for electronic signature in Mexico, leaving the other topics for future posts. The main principles of interpretation, as stated by Mexico’s Code of Commerce are: technological neutrality, will autonomy, international compatibility, and functional equivalence. These principles dictate how authorities and the law should interpret the electronic signature for legal validity in commercial matters when used instead of a physical signature.

Technological Neutrality– The idea is for the electronic signature (in this specific case) to be accessible to its users in a way that it doesn’t exclude, restrict, or favor any particular technology. “The concept of technological neutrality at a user level means that any service or product can be accessed through any device, OS or platform, meaning that a business does not make the user a specific device in order to use the service.” [2] In WeeSign, our users don’t even have to download an app to sign – nor create an account. Yes, the signatories’ emails have to be validated in order for the signature to be valid, however the creation of an account is not required for them. I can’t think of a more direct application of this Technological Neutrality principle than users signing seamlessly without any extra steps that would cap their ability to use the service – for example, What happens if a user has to download an app in order to sign ? What happens if that user has no space in his/her phone and would have to delete private or classified important information in order to sign? Not sure if this would constitute a violation of the principle, however it could be “hurting” it in a way.

Will Autonomy – Refers to the possibility an individual has to conduct legal affairs within the boundaries established by the law. Better said by the classic legal author Domínguez Martínez:

“Will Autonomy brings within the recognition of the possibility the individual has to conduct himself in an action sphere so sufficiently reasonable that it allows him to plan, foresee, and solve personal and patrimonial requirements with a degree of liberty legally guaranteed both internally in order to decide, and in the decision itself to create a legal link or not, and in the chosen terms and scope, but in any case with self determination, which allows him to have a protagonist participation in the active juridical life, within his reach. This brings … important benefits for the development of the individual within the world of legal business and legal acts.”[3]

When we were developing WeeSign, we discussed internally whether to allow users to sign using their autograph signature, or just to create a flow of clicks and checkmarks in order to create valid legal consent. We came to the conclusion that it was key for the end user to fully understand what is going on when signing a document with WeeSign. We know, because we have monitored it in a tight feedback loop, that people in Mexico, regardless of age, consider it key to actually see their signature in the document to fully understand that they are, indeed, giving legal consent to the text of the document. Either way, since the autograph signature is translated into code language, it can always be replicated using the precise coordinates and speed in a way that can be presented as evidence in court (if need be).

Why the rant about the autograph signature then, and how is it related to Will Autonomy? Because we believe that it constitutes an important transition phase from internal will to external action – the decision. We believe that by removing the ability for the end user to actually see the his or her signature, other electronic signature providers are generating confusion in the decision making process – it is a digital adoption and training issue; therefore we keep the use of autograph signatue for our Firma Electronica Simple flow. Maybe in the future, with a generation leap, everyone will know the difference between signing a document and agreeing to whichever website’s terms and conditions – today, many users still have trouble understanding the difference between one and the other – especially if the layout is not intentional enough for end users to know for certain and without any doubt what is going on (specially within certain age groups or income groups).

International compatibility – About international compatibility, Mayer Brown’s article mentions that “recognized international standards and criteria shall be used”. However Campoli punctualizes that “the only problem is that no clear framework exists at an international level that allows us to reference to a single standard of comparison for international compatibility, which can bring serious issues at the moment of interpretation, especially those judges who should define the validity of a foreign signature or certification while on litigation.” [4] Campoli also mentions the importance of “compatibility of programs or software used for the creation of electronic signatures and their registry in order to allow for international commercial operations on electronic devices to maintain a minimum degree of legal security … ” [5].

In WeeSign, we use HyperLedger Sawtooth, which is the best of technology available for solving the issue of electronic signatures. Blockchain technology truly brings added value to the table – especially the way we designed it in WeeSign [6] and the way our smart contracts work for the benefit of all users. Blockchain technology with Hyperledger is also a very good example of what globalization and internationalization is all about, given that most releases past or future are the product of international cooperation and are aimed towards standardizing practices and creating trust between us using the inherent characteristics of Blockchain technology. The releases I speak of are Hyperledger Fabric, Sawtooth, Indy, Iroha, Quilt, Transact, Ursa, Aries, Avalon, Besu, Burrow, Cactus, Caliper, Cello, Explorer, and Grid–most of them were (or are being) built by teams of different businesses and often different countries working together. WeeSign is not the only software oriented towards the management of the digital identity – an article written by the Hyperledger Foundation mentions that  “Digital identity is gaining a lot of traction as a driver for blockchain adoption. There is growing recognition across many markets that reshaping how digital information is managed and verified can simultaneously increase online trust and privacy.”[7]  Therefore we can argue with good grounds that WeeSign fulfills with international compatibility, given that international reach and compatibility were always key goals since we were founded and it is among our core principles to extend always our international reach.

Functional Equivalence Of Data Messages in relation to the Information Documented in Non Electronic Means and of the Electronic Signature in Relation with the Autograph Signature[8] – The title of this section was directly extracted from Campoli’s article intentionally because I think it brings extra information that is key to understanding this principle, compared to the one in the Mayer Brown piece, which mentions only “Functional Equivalence”. Campoli immediately mentions the importance of Article 89 bis from Mexico’s Commerce Code which states that “No legal effects, validity, or mandatory force will be denied from any type of information for the sole reason of it being kept in a Data Message. Therefore, such Data Messages can be used as proof in any activity before duly recognized authority, and will generate the same effects as in printed documentation…”[9]. So, for the purpose of electronic signature and legal consent, we must understand this principle as knowing that whatever it is we are legally consenting to, it will carry legal consequences because the law gives the same validity as if it was written and consented to physically in paper. So, sign away with WeeSign! Knowing that whatever you sign using WeeSign is completely legal according to the law.

Start signing today with WeeSign. Register for Free (no card information required) at https://www.weesign.mx/home/register and enjoy 5 documents for Free per month. Or schedule a call with us in hsttps://drift.me/weesign/meeting


[1]  [https://www.mayerbrown.com/en/perspectives-events/publications/2020/06/use-of-electronic-signature-for-commercial-transactions-in-mexico] [Raúl Fernández, Lilia Alonzo and Aldo A. Jáuregui, Use of Electronic Signature for Commercial Transactions in Mexico]

[2] [https://www.viafirma.com/blog-xnoccio/es/neutralidad-tecnologica/].[translation by the author of this post]

[3] [https://archivos.juridicas.unam.mx/www/bjv/libros/8/3834/9.pdf] [page 84, Orden Público y Autonomía de la Voluntad – Jorge Alfredo Domínguez Martínez] [translation by the author of this post]

[4] [page 3, Los Parámetros de Interpretación de la Ley de Firma Electrónica en Materia Comercial, Dr. Gabriel A. Campoli] [http://www.ordenjuridico.gob.mx/Congreso/pdf/161.pdf]

[5] Ibidem

[6] https://info.weesign.mx/2020/06/27/understanding-blockchain/

[7] https://www.hyperledger.org/blog/2020/04/30/identity-applications-in-action-powered-by-hyperledger

[8] [page 3, Los Parámetros de Interpretación de la Ley de Firma Electrónica en Materia Comercial, Dr. Gabriel A. Campoli] [http://www.ordenjuridico.gob.mx/Congreso/pdf/161.pdf]

[9] [http://www.pa.gob.mx/normatecapa/disposiciones%20jur%C3%ADdicas/47.-%20C%C3%B3digo_de_Comercio.pdf][Code of Commerce, page 21, Article 89 bis]