The use of electronic signatures in Mexico: advantages and procedural obstacles

A couple of decades ago, in 2003, our country took an important step toward the digitalization of legal acts, with the reform of various legal systems that regulate relations between individuals and authorities. The main objective of the reforms was to introduce the electronic signature as a valid alternative to the handwritten signature on paper. The aim was to facilitate the execution of contracts and legal acts through electronic means, strengthening the growth of e-commerce and remote interactions. Since then, the use of these tools has become commonplace, although to date they still face certain challenges in their implementation within the jurisdictional sphere.

In response to the need to regulate the use of electronic signatures in our country, legislators have incorporated various provisions into the legal systems that establish their bases and requirements. Among the main ones are the Commercial Code; the Federal Civil Code; the Federal Code of Civil Procedure; the recent National Code of Civil and Family Procedure; and, more specifically, the Advanced Electronic Signature Law (LFEA), which regulates their issuance, operation, and validity. These laws together have allowed the electronic signature to become established as a reliable legal tool, replacing the handwritten signature on paper.

The LFEA stipulates that an electronic signature is a set of data and characters that allows the identification of the signatory, created by electronic means under their exclusive control, so that it is linked solely to the signatory and the content of the document to which it refers. The use of this electronic tool allows any modification to the document to be detected and guarantees that it has the same effects as a handwritten signature.

However, it is important to note that, in order for an electronic signature to be fully effective as an autograph, it must meet certain requirements established by the applicable legal systems. Let's see:

The Commercial Code establishes that documents sent by electronic means have the same legal validity as physical documents, provided that the signature can be attributed to the signatory.[1]. On the other hand, in 2017, the Ministry of Economy published the Mexican Official Standard "NOM-151-SCFI-2016," the purpose of which is to regulate the preservation and integrity of these data messages sent by merchants through electronic means, thereby ensuring their evidentiary value.

This standard establishes that certain electronically signed documents must also have a certificate of retention issued by a Certification Service Provider that includes a time stamp, which guarantees that the content of a document has not been altered and the accuracy of the date on which the document was generated.

However, the problem of using advanced electronic signatures can arise in litigation when one of the parties questions the validity of the electronic signature, focusing on a lack of consent from the signatory or challenging that its use was not made by the owner of the signature. These arguments make it necessary to obtain expert computer reports during the processing of trials, which can result in costly and time-consuming expenditures.

Therefore, in order to fully sustain the validity of electronically signed documents during the processing of a lawsuit, it is recommended that the requirements established by the corresponding legislation and the referred Mexican Official Standard be complied with and expressly refer to it in court. In practice, it is also advisable to present the electronically signed document and the format of the document that allows authenticating the use of the electronic signature, explaining in detail the validation process of the signed document.[2]

In conclusion, the position held by the federal courts is clear: electronic documents are admissible as documentary evidence, provided their reliability and authenticity can be sufficiently demonstrated. While their digital nature requires careful assessment, -given the technical possibility of alteration or falsification- This does not imply their automatic exclusion from the trial. On the contrary, their evidentiary value may be as high as that of handwritten documents. Thus, the courts are strengthening a criterion of functional equivalence that recognizes a growing role for electronic media in contemporary judicial practice.[3]

[1] Article 89 Bis: No type of information shall be denied legal effect, validity, or binding force solely because it is contained in a Data Message. Therefore, such messages may be used as evidence in any proceeding before a legally recognized authority and shall have the same legal effect as printed documentation, provided that the data messages comply with the provisions of this Code and the corresponding regulatory guidelines.

[2] Stahl Ducker, Jonathan, “Main Reasons Why Judges Do Not Admit Electronic Documents in Trials” Available at https://blog.mifiel.com/razones-jueces-no-admiten-documentos-electronicos/

[3] See the separate thesis entitled “DOCUMENTS AND EMAILS. THEIR VALUATION IN COMMERCIAL MATTERS” with digital registration 2002142.