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new technologies or, conversely, the dangers of producing legislation des-
tined to age prematurely in light of a rapidly moving technological horizon.
Indeed, several members of the group feared the reform would undermine
the philosophy of the existing system. Even if reform proved eventually
necessary, it should remain careful “not to betray the spirit of the Civil
code,” in particular the preconstitution of written proof and the protection
it provides in evenly sharing the burden of proof between the parties. 24
What kind reform should then take place? The group weighed the rela-
tive merits of several approaches, including the status quo. One could
widen the scope of the free proof regime—that is, admit all and any elec-
tronic writing—but leave the evaluation of its evidential qualities to the
court. One could also continue the current practice of admitting electronic
documents as exceptions to written proof. However, this approach con-
tinued to relegate electronic evidence to a second-class status, and in
any case, it was conceptually difficult to define born-digital documents as
faithful reproductions of paper originals, when these never existed in the
first place. Finally, one could also formally recognize the right for parties
to conclude private proof conventions, a mechanism already admitted
by jurisprudence and widely employed for debit and credit cards. Such
private agreements did not, however, guarantee an even playing field with
respect to the burden of proof.
Thus, although French legislation and jurisprudence did not formally
deny admissibility and legal effects to electronic documents, it lacked a
clear definition of their status. Like Larrieu, the members of the group
agreed that a reform would mostly perform a symbolic function. Yet inas-
much as “in the citizens' practice and imaginary, writing remains assimi-
lated to paper,” the law could also serve a pedagogical purpose, by
introducing a new characterization of written proof that would emphasize
its independence from any particular media, paper or electronic. It is in
this spirit that the group suggested the new article 1316 that defined
written evidence as any sequence of intelligible symbols, whatever its media
and means of transmission . Though the authors underlined that case law
had never restricted writing to a specific physical media or sets of symbols,
critics were quick to point out that the definition was so abstract as to
include within its scope a broad range of ephemeral traces: “' Loulou pour
la vie, Riri ' engraved on a tree trunk or on a wooden desk, words traced
out on a misty window, in addition to writing on sand or an advertisement
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