Legality of eSignatures in Guatemala

Background

Electronic signatures are transforming document authentication by providing efficient and sustainable options that are becoming popular in Guatemala and globally. These digital solutions speed up transactions and lessen paper use.

In Guatemala, choosing an electronic signature service that adheres to local laws, particularly Decree No. 47-2008, is crucial to ensure legal recognition. While electronic signatures are widely accepted, some documents may still require a traditional signature, and seeking legal counsel is advisable due to variable local regulations.

Security is paramount in electronic signature services, which should feature encryption, identity checks, and audits to maintain document integrity and prevent misuse. Services like BoldSign offer these essential security features and meet legal and safety standards.

Overview of electronic signature regulation in Guatemala

The operation of the electronic signature is regulated by Decree No. 47-2008¹. The decree divides electronic signatures into²:

• Standard electronic signatures
• Advanced electronic signatures

The law recognizes electronic signatures as legally valid, stating that a communication or contract cannot be deemed legally ineffective, invalid, or non-binding simply because it is executed electronically.³

Moreover, the law empowers parties to agree to electronic signatures in their transactions. While consent can be deduced from actions in private dealings, transactions involving a government entity require explicit consent.

A standard electronic signature⁴ is any data in electronic form recorded in an electronic communication or attached or logically associated therewith that can be used to identify the signatory in relation to the electronic communication and indicate that the signatory approves the information collected in the electronic communication.

An advanced electronic signature is an eSignature meeting the following requirements⁵:

• Uniquely linked to the signatories 
• Capable of identifying the signers 
• Developed using means that the signatory can maintain their control  
• Linked to the data it relates to so that any subsequent change to the data is detectable 

Uniquely linked to the signer 

An advanced electronic signature must be uniquely connected to the person using it. The signature must be uniquely generated using methods only the signer can access, like a private key and confidential information, to verify their identity. 

Use and incorporation remain in their sole control 

The person using the secure electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent signature forgery. 

Identify the person using the technological process 

The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, personal identification number (PIN), email address, or company registration number. 

Track down any alterations made after signing 

It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer's IP address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place. 

Guatemala also has a certification authority that issues certificates for electronic signatures, held to bear the same legal validity as holographic signatures, especially where the signature is required by law.

Where any legal rule requires a party to endorse a message or contract or prescribes consequences for not doing so, this requirement is considered met within the realm of an electronic message when a procedure is used that both verifies the identity of the relevant party and conveys their intent regarding the electronic message's content⁶.

This holds regardless of whether the method used is reliable and appropriate for the electronic message's intended purpose or method of delivery, considering the overall context and any pertinent agreements, or if the technique is effective in practice for these purposes, either on its own or when supplemented with other evidence.

Summary analysis

Under the Decree No. 47-2008

The scope of limitation of electronic signature transactions

Electronic signature validity varies with document types, making them suitable for some transactions but not others. A detailed analysis and a summary table of such transactions are provided below.

Documents that can be signed

Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:

1. Human resources
2. Procurement
3. Non-disclosure agreements (assuming they are contracts, not formal deeds)
4. Internal correspondences
   

Exemptions

By limiting the scope of electronic signatures’ use, the decree (under Article 1) lists transactions that cannot be completed as such. This is also captured in the civil code, which offers guidelines on the scope as follows:

1. In the obligations contracted by the State under International Conventions or Treaties.
2. In written warnings that, by legal provision, must be printed on certain types of commodities due to the risk associated with their marketing, use, or consumption.
3. Contracts whose value exceeds 300 quetzals. (Art. 1575 of the Civil Code)
4. Powers of attorney (Art. 1687 Civil Code).
5. Contracts that must be registered or noted in public records (Art. 1576 of the Civil Code)
6. Promise to purchase real property. (Art. 1680 Civil Code)
7. Notaries

Summary of the scope and limitations of eSignature transactions

How does BoldSign help

The following elements available within BoldSign ensure compliance with the Guatemalan eSignature laws:

• Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer's email address. This ensures that the document is only accessed by the intended signer and cannot be tampered with.
• Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds another layer of security to the signing process.
• Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
• Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
• Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This ensures that the signer is aware of the implications of signing electronically and has given their consent.
• Custom terms: Get your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.

Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.

However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations are subject to frequent changes, and the information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.

Syncfusion makes no warranties of any kind, including but not limited to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information, without limitation of any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.

Neither Syncfusion nor its officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.