Written Proof - Burdens of Proof - page 113

Indeed, the government had recently decreed lawful the free use of
strong cryptographic products, a decision Jospin described as “of the
utmost importance, since [such products] guarantee both confidentiality
of messages and security of transactions.” Such a decree was only one
example of the work accomplished by the government in order to adapt
the French legislative framework to the Information Society, and Jospin
announced that “the proposal for a bill 'regarding the adaptation of evi-
dence law to information technologies and relative to electronic signa-
tures' will be presented at the next meeting of the Ministerial Council. The
main legal obstacles to the development of dematerialized transactions
should thus be lifted.” 53
Jospin further announced that the government would soon propose
a comprehensive bill that would define the social charter of the French
Information Society. At that point, however, the electronic signature bill
constituted the only clearly defined element of that charter and was
submitted to the Senate on September 1, 1999. Built on the avant-projet
drafted by the working group, the new version incorporated several of
the recommendations from the Conseil d'état . It largely adopted the
working group's definition of writing and requirements for admissibility,
its proposal for resolving conflicts between paper-based and electronic
written proof and its recognition of private proof agreements. However,
instead of establishing an evidential differential between paper-based and
electronic written proof, it resolutely affirmed the directive's nondiscrimi-
nation principle:
Art. 1316-3 —Writing on electronic media has the same evidential value as writing
on paper.
The bill also disregarded the working group's proposals with regard
to apportionment of the burden of proof, taking up instead the Conseil
d'état proposal to shift the question over to the signature mechanism's
trustworthiness:
Art. 1316-4— The signature necessary to perfect a juridical act identifies the one who
affixes it and manifests his consent to the obligations which flow from this act.
When it is electronic, it consists of the use of a trustworthy identification mecha-
nism guaranteeing the link with the act to which the signature is attached. The
trustworthiness of this mechanism is presumed, until proof of the contrary, when
the signature is created, the identity of the signatory ensured, and the integrity of
the act guaranteed, under conditions established by a decree from the Conseil d'état .