Electronic Documents as Evidence: — Unity in Diversity?

Abstract

The implementation of a new legislation, with many rules the application of which involves the analysis of technical (informatic) aspects, requires finding a fair balance between the use of new electronic supports on one hand and the protection of consent and the civil circuit on the other. The protection of participants in the civil circuit shifts the focus towards the interpretation of electronic documents, both from the perspective of probative force and from the perspective of expressing consent, as well as interpreting the manifestation of will, often transmitted fragmentarily through electronic communication means. The regulation of evidence through documents on electronic support seems to be more complementary to the regulation regarding electronic signatures, generating, on one hand, a correspondence between documents on electronic support and traditional paper documents, and, on the other hand, structuring a hierarchy of  ‘electronic documents’ targeted by European regulation, from the perspective of probative force. To overcome the technical challenges related to the reliability of technology, the integrity of documents, and proving provenance, jurisprudence must be based on a balanced solution that allows for the broadest possible use of electronic documents, which are easier to store, limited only by the reasonable assurance of the safety of the civil circuit.