Victor Hugo Pereira Gonçalves, lawyer specializing in digital law and author of the book Marco Civil Comentado
The Notarial Act, a public instrument through which notaries and agents give, at the request of someone, legal credibility and public-faith to facts or events, is often drawn up to the taste of the customer and without the necessary zeal with the veracity of the facts. The fact is widely known by lawyers and, therefore, it surprises its acceptance as a document with proving force and legal relevance. However, even more reckless is the current lack of questioning regarding its use in the case of electronic documents, whose proof of veracity requires technical preparation and infrastructure that do not exist in the Brazilian registry offices.
Notarial minutes have always had probative consideration and blind acceptance by the judges. The fact that they were drafted by a notary is part of the Luso-Brazilian tradition and keeps a distance from the demands of constructing the truth in legal proceedings. This situation was expanded exponentially with Law no. 11,419 / 2006, which made it possible to computerize judicial processes in the country. However, there was no adoption of security controls and procedures for the formation of this type of document. And it was in this context that the Civil Procedure Code of 2015, unlike its predecessor, of 1973, brought the Notarial Act to the chapter of Evidence, further expanding its status of judicial evidence, in its art. 384.
This insertion caused a surprise, both in legal and technological terms. It was expected that, with the new CPC, the lack of legal certainty in the formation of notarial acts on paper would be addressed. It was not. The legislator, in a reckless way, reaffirmed the historic procedure of the Notary Act and included the electronic files within the list of possibilities of realization of this document. Seven years after the adoption of information and communication technologies for judicial procedures, new flaws, related to the information security of this Brazilian notary practice, are added to the old ones.
Without going into the merit of the possibilities of adulteration of the Notary Minutes on paper, in the case of digital, it is necessary to pay attention to requirements for information security, validation procedures and guarantee of authenticity of digital documents. However, which registry offices have an information security policy? Do any notaries give technological guarantees? Are there procedures for the execution of the Notary Minutes? Among others, there should be no human intervention in the insertion of electronic files. And there is always. Without these guarantees, there is no way to attribute probative force to the Notary Minutes.
The production of evidence from digital documents requires auditable protection procedures. It is necessary to identify, for example, on what day and time a digital document was produced and to guarantee its inviolability after its production, which is achieved by detecting the security hash, a unique algorithm that each electronic document holds. None of this is observed in the production of evidence through the Notarial Act, which does not meet the international rules of information security nor the ABNT NBR ISSO / IEC 27002: 2005 Standard, which establishes practices for the management of information security.
The Notary Act does not protect the protection of the digital document either in its formation or after. There are no checks to verify integrity or authenticity. Even so, art. 405 of the CPC determines that the “public document provides proof not only of its formation, but also of the facts that the clerk, the head of secretary, the notary or the server declares to have occurred in his presence”.
When excluding the possibility of bad faith in the formation of the digital public document, other problems arise capable of destituting the Notarial Act of total reliability. Would the notary be able to evaluate what is happening in technological terms on a website? Are you able to certify as true the content that occurs in your presence? What if a hacker broke into the notary's computer and forged that page? Is the formation of that digital document auditable? Finally, the legislator of the CPC reinforces the mistake of raising the Notary Act as a document and giving the notary public the power of the integrity, reliability, confidentiality and authenticity that a digital document would need.
Interestingly, an antithesis of art. 384 is found in art. 407 of the CPC: the document made by "an incompetent public official or without observance of legal formalities, being signed by the parties, has the same evidential effectiveness as the private document". The Notarial Act does not follow any legal formality for creating a digital document. No ISO or ABNT standards. The Notarial Act does not respect the rule of art. 39, inc. VIII, of the CDC, which vetoes “placing, in the consumer market, any product or service in disagreement with the rules issued by the competent official bodies or, if specific rules do not exist, by the Brazilian Association of Technical Standards or another entity accredited by the National Council Metrology, Standardization and Industrial Quality (Conmetro) ”.
Therefore, deductively, the Notarial Act has no probative force as a public document, only that of a private document that, as such, has little reliability, which makes the procedural scope of search and construction of material truth unfeasible.
Notice: The opinion presented in this article is the responsibility of its author and not of ABES - Brazilian Association of Software Companies.
Notarial minutes have always had probative consideration and blind acceptance by the judges. The fact that they were drafted by a notary is part of the Luso-Brazilian tradition and keeps a distance from the demands of constructing the truth in legal proceedings. This situation was expanded exponentially with Law no. 11,419 / 2006, which made it possible to computerize judicial processes in the country. However, there was no adoption of security controls and procedures for the formation of this type of document. And it was in this context that the Civil Procedure Code of 2015, unlike its predecessor, of 1973, brought the Notarial Act to the chapter of Evidence, further expanding its status of judicial evidence, in its art. 384.
This insertion caused a surprise, both in legal and technological terms. It was expected that, with the new CPC, the lack of legal certainty in the formation of notarial acts on paper would be addressed. It was not. The legislator, in a reckless way, reaffirmed the historic procedure of the Notary Act and included the electronic files within the list of possibilities of realization of this document. Seven years after the adoption of information and communication technologies for judicial procedures, new flaws, related to the information security of this Brazilian notary practice, are added to the old ones.
Without going into the merit of the possibilities of adulteration of the Notary Minutes on paper, in the case of digital, it is necessary to pay attention to requirements for information security, validation procedures and guarantee of authenticity of digital documents. However, which registry offices have an information security policy? Do any notaries give technological guarantees? Are there procedures for the execution of the Notary Minutes? Among others, there should be no human intervention in the insertion of electronic files. And there is always. Without these guarantees, there is no way to attribute probative force to the Notary Minutes.
The production of evidence from digital documents requires auditable protection procedures. It is necessary to identify, for example, on what day and time a digital document was produced and to guarantee its inviolability after its production, which is achieved by detecting the security hash, a unique algorithm that each electronic document holds. None of this is observed in the production of evidence through the Notarial Act, which does not meet the international rules of information security nor the ABNT NBR ISSO / IEC 27002: 2005 Standard, which establishes practices for the management of information security.
The Notary Act does not protect the protection of the digital document either in its formation or after. There are no checks to verify integrity or authenticity. Even so, art. 405 of the CPC determines that the “public document provides proof not only of its formation, but also of the facts that the clerk, the head of secretary, the notary or the server declares to have occurred in his presence”.
When excluding the possibility of bad faith in the formation of the digital public document, other problems arise capable of destituting the Notarial Act of total reliability. Would the notary be able to evaluate what is happening in technological terms on a website? Are you able to certify as true the content that occurs in your presence? What if a hacker broke into the notary's computer and forged that page? Is the formation of that digital document auditable? Finally, the legislator of the CPC reinforces the mistake of raising the Notary Act as a document and giving the notary public the power of the integrity, reliability, confidentiality and authenticity that a digital document would need.
Interestingly, an antithesis of art. 384 is found in art. 407 of the CPC: the document made by "an incompetent public official or without observance of legal formalities, being signed by the parties, has the same evidential effectiveness as the private document". The Notarial Act does not follow any legal formality for creating a digital document. No ISO or ABNT standards. The Notarial Act does not respect the rule of art. 39, inc. VIII, of the CDC, which vetoes “placing, in the consumer market, any product or service in disagreement with the rules issued by the competent official bodies or, if specific rules do not exist, by the Brazilian Association of Technical Standards or another entity accredited by the National Council Metrology, Standardization and Industrial Quality (Conmetro) ”.
Therefore, deductively, the Notarial Act has no probative force as a public document, only that of a private document that, as such, has little reliability, which makes the procedural scope of search and construction of material truth unfeasible.
Notice: The opinion presented in this article is the responsibility of its author and not of ABES - Brazilian Association of Software Companies.
EN 
PT 
