eSignature Legality in Colombia

E-Signature Legality Summary

Law 527 of 1999 regulates e-commerce and provides the basis for the existence and enforceability of electronic and digital signatures and electronic records (data messages). The following are the most relevant articles:

• Article 2 defines a data message;

• Article 2 defines a digital signature;

• Article 6 states that any law that requires a written document will be complied with through a data message, if the information is available for later consultation;

• Article 7 states that any law that requires a signature will be complied with through a signature that (a) uses a mechanism that allows for the identification of the initiator of a data message and his/her approval; and (b) uses a reliable mechanism to guarantee the above mentioned;

• Article 10 states that data messages can be used as evidence in administrative and judicial procedures;

• Article 28 provides digital signature enforceability requirements; and

• Chapter III sets the applicable rules regarding digital signature certificates.

Decree 2364 of 2012 establishes the differentiation between electronic signatures generally and a digital signature as a specific type of electronic signature. The following are the most relevant provisions:

• Article 1 defines an electronic signature;

• Articles 3 and 4 recognize the enforceability of electronic signatures;

• Article 4 sets electronic signature reliability requirements; and

• Article 8 sets electronic signature security requirements.

Notable Changes in E-Signature Law Since 2020

Decree 526 of 2021 regulates the use of electronic signatures in employment contracts. In this regard, this Decree foresees that employee contracts may be validly signed with either digital or electronic signatures.

Law 2121 of 2021 regulates remote work and foresees that employees that work remotely may sign their contracts using digital or electronic signatures.

Types of Permitted Electronic Signature

An electronic signature is any reliable and adequate method used to identify an individual regarding a data message, such as codes, passwords, biometric data, and cryptographic passwords.

For an electronic signature to be reliable and enforceable, the law requires that:

1. The signature allows for the identification of the signer and 

2. The mechanism used allows for the detection of any alteration made to the data message after the signature was added.

A digital signature (which is a type of electronic signature) is a numeric value that is added to a data message that, using a known mathematical procedure applied to text of the message using the password of the signer, allows for a determination that such value was obtained exclusively using the password of the signer and that the message has not been altered after such procedure.

Beyond the general requirement for electronic signatures, digital signatures shall be verified through a certificate issued by an entity authorized for that purpose, known as a certification entity.

Documents That May be Signed Electronically

The general rule is that any document that can be signed by hand can also be electronically signed. Typically, there are no specific formal requirements; any form of electronic signature that meets the definitions above for an electronic signature or a digital signature may be used.

Further Guidance

An electronic signature shall have the same validity and legal effects as a handwritten signature if the electronic signature is determined to be reliable and appropriate. On the other hand, a digital signature is presumed to be valid due to the accreditation given by the authorized Colombian entity (The National Accreditation Organism “ONAC”).

Regarding digital signatures, ONAC has a searchable directory of entities that are accredited to grant certificates for digital signatures. 

Moreover, regarding contracts, Law 527 of 1999 establishes that, in the formation of a contract, unless expressly agreed between the contracting parties, the offer and its acceptance may be expressed by means of a data message. Data messages are defined as information generated, sent, received, stored or communicated by electronic, optical or similar means, such as, electronic data interchange (EDI), the Internet, electronic mail, telegram, telex or facsimile. Therefore, the validity or binding force of a contract shall not be denied for the sole reason that one or more data messages have been used in its formation.

Also, additional laws and directives apply with respect to the use of electronic signatures by specific regulators and governmental authorities, or by private individuals interacting with such regulators or authorities or otherwise acting in a public capacity.

Enforcement Penalties for Non-Compliance

Colombian regulation does not establish enforcement penalties for non-compliance within the usage of electronic signatures or digital signatures. However, failing to comply with the requirements established by the regulation for them to be considered as valid may result in the electronically signed documents not being enforceable.

Seminal Case Law

The following cases are examples of where a Colombian court addressed the use of electronic signatures:

• Colombian Supreme Court. Decision issued on December 16, 2010. Rad. 2004-01074-01 (in Spanish)

• Constitutional Court. Decision C-662 issued in 2000 (in Spanish)

• State Council. File: 11001-03-24-000-2010-00530-00 issued in 2018 (in Spanish)

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• Law 527 of 1999 (in Spanish)

• Decree 2364 of 2012 (in Spanish)

• Decree 526 of 2021 (in Spanish)

• Law 2121 of 2021 (in Spanish)