The implementation of e-government in registry services should facilitate citizens’ access to information in a simple and timely manner, resolving their needs through a single contact with the State, even when their requirements involve more than one institution. In addition, it should eliminate the need to present documents already available in electronic format in other public bodies and integrate the payment of fees and taxes digitally.
However, this new paradigm – which makes everything available to everyone – also requires the adoption of measures that guarantee the integrity, security and availability of information. This implies reviewing regulations and administrative processes to eliminate bureaucratic obstacles, while reinforcing critical aspects that ensure the veracity of the data included in the records, protecting the rights that derive from them and safeguarding the privacy of citizens. It is equally crucial to consider the technological infrastructure of the community to which the system is directed to ensure its effective implementation.
These technological advances have a significant impact on the way contracts are concluded, especially in the transition from written paper with a handwritten signature to digital media with electronic or digital signatures. These new mechanisms should offer the same security and confidence as the traditional format in order to displace the long-established practice in countries with Latin legislation, where the handwritten signature prevails in the presence of a notary as a guarantee of the parties’ will.
This change raises a relevant question: is the current legal framework sufficient to address the challenges arising from electronic contracting or is the development of specific regulations required? In Argentina, beyond Law 25,506 and its incorporation in art. 288 of the Civil and Commercial Code (CCyCN), the expression of will in digital environments has not been exhaustively regulated, nor have vices (error, fraud and violence) been addressed, or issues relating to the formation of consensus and the legal effects of contracts concluded electronically. The few existing regulations are limited to distance consumer contracts, leaving other contractual relationships without specific regulation.
The digital signature is commonly associated with three attributes: identity, integrity and non-repudiation, although the latter is not expressly contemplated in Argentine legislation. However, whether these three characteristics are considered or only the two provided for by law, all of them are presumptions that admit proof to the contrary.
The digital origin only offers reasonable certainty that the certificate or signature corresponds to the person who holds the private key linked to the certificate, in a similar way to how the handwritten signature offers reasonable certainty that its holder is responsible for the signed document. Article 288 of the CCyCN equates the digital signature that undoubtedly ensures the authorship and integrity of the document to the handwritten signature, as proof of the authorship of the declaration of will, but this does not extend its scope beyond what the handwritten signature certifies about the conditions under which that will was expressed.
For this reason, legislation, considering the importance of certain assets and the relevance of some contracts, imposes formalities intended to provide security both to the contracting parties and to society in general. These formalities include the intervention of a public official who must certify not only the authorship, but also the absence of defects in the will at the time of the formation of the consensus that gives rise to enforceable rights both between the parties and against third parties, once the required formalities have been fulfilled. An example of this is the purchase and sale of real estate, where the expression of will must be made by means of a public deed, or the Legal Regime of the Motor Vehicle, which requires that registration requests be signed in the presence of the Manager or certified before authorized persons.
Harmonization between the current legal framework and the opportunities offered by new technologies remains a pending challenge in Argentina. The recent Decree 743/2024 does not make significant progress in this regard, limiting itself to incorporating a remote way of obtaining a digital signature. Until now, to obtain a digital signature, the interested party had to appear before an authorized authority, where a photograph was taken and their fingerprints were compared both physically and electronically with the information in the RENAPER. This process ensured that the data of the person present matched those registered in the DNI and in the official database, attributing responsibility for the digitally signed documents to that person.
The new modification allows for identity validation without the need to appear before a registration authority, although the specific mechanisms that will be used to guarantee security in this remote modality have not yet been detailed. While waiting for greater clarity, it is important to reflect on the value of the in-person modality, which is currently free and accessible in an extensive network of offices distributed throughout the country, such as those of the Argentine Post Office, Motor Vehicle Registries, Notary Associations, AFIP, universities and municipalities, among others. If everything works correctly, in about 20 minutes the citizen can obtain his digital signature without expiration, with the peace of mind that a competent authority has verified his identity and made him responsible for the documents he signs digitally.
It remains to be seen whether the convenience of the remote option will justify the potential decrease in security that comes with not having to rely on a trained person who is responsible for his or her actions.
Attorney specializing in Administrative Law; member of AAERPA (Argentine Association of Automotive Property Registry Officers)
Source: Ambito
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