Cryptography Reference
In-Depth Information
traced in smoke by a plane, all constitute, in application of article 1316,
written proof.”
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In its attempt to provide a modern definition of writing as fully inde-
pendent from any specific material basis, the new article 1316 thus seemed
to potentially sacrifice an essential property of written proof, that is, its
fixity and durability over time.
Proving by Electronic Writing
If the reform were to grant electronic writing full status as a means of proof,
several difficult issues would need to be addressed: (a) the conditions under
which such a status would be granted; (b) the probative value of electronic
writing; and (c), its relationship to other means of proof, that is, its place
within the evidence hierarchy, with the specific problem of how to adju-
dicate conflicts between paper-based and electronic writing.
The group proposed to add two new articles to the Civil Code to follow
the new article 1316. They defined the conditions necessary for electronic
writing to be granted probative value: “Electronic writing is considered as
having probative value, provided that the person from which it emanates
is duly identified and that it is drawn up and preserved under conditions
able to guarantee its trustworthiness.” That is, electronic writing would
have to fulfill three separate conditions: (a)
imputability—
the possibility of
linking it to its author, producer, or originator; (b)
formalism—
having been
drawn up under appropriate conditions; (c)
integrity—
having been pre-
served following appropriate procedures. Although the specific nature of
the link between author and document and the criteria for evaluating
appropriate “conditions” would be left to the sovereign appraisal of the
judge, once those conditions were satisfied, electronic writing would be
writing, period. As the group stated, “electronic writing is elevated to the
rank of written proof. No longer will we ask ourselves whether it must
considered a beginning of written proof, or an exception to written proof.
It is a written title, affording to the one who uses it a full and complete
proof.”
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The group felt, however, that the boldness of granting electronic writing
full probative value should be tempered by a more cautious approach in
establishing the degree of that force and, in particular, the question of
establishing the burden of proof. That is, presented with an electronic
document, how could a party challenge its trustworthiness? The working
