There is no doubt that the impact of the information age, and particularly the development of new technologies, has affected all areas of knowledge. In that regard, judicial proceedings have not escaped this reality.
In our view, ICTs have impacted civil proceedings in two general ways: first, in relation to the manner in which court administration is managed, since nowadays it is common to observe recording systems, electronic court notifications, as well as the examination of witnesses or experts through audiovisual means; and second, in the way electronic evidence is offered, produced, and assessed. With respect to the latter, I will address one of the most common means in judicial practice: email.
Email is nothing more than a network service that allows users to send and receive messages through electronic communication networks. The term “email” derives from its analogy to postal mail: both are used to send and receive messages, and both make use of intermediate “mailboxes.” Through email, it is possible to send not only text, but all types of digital files.
Now then, if the purpose of evidence is to prove the assertions made by the parties regarding disputed facts, the following questions arise: How do I submit an email as evidence in civil proceedings? And if it is admitted by the judge, what evidentiary value does it have?
Before answering those questions, it is necessary to recall some important concepts: sources of evidence and means of evidence. Sources of evidence are the elements that exist in reality and are capable of producing conviction regarding factual data. Sources of evidence are legally unlimited. Means of evidence, by contrast, are the procedural activities of the parties and the judge through which sources of evidence are incorporated into the proceedings and the corresponding results are obtained from them.
In that sense, the source of evidence for an email is the server where the data is stored, and the appropriate means of submitting it would be by producing its source code for that purpose and documenting its presence on the servers, if it still remains there, or on the hard drive. For that reason, the appropriate evidentiary method is expert evidence.
In practice, parties attach to their pleadings the documentary representation of the email through a printout; that is, they offer it as documentary evidence. While it is true that there is no prohibition against submitting it in that manner, and that such printouts may be subject to the rule set forth in Article 341 of the Civil and Commercial Procedural Code, which provides that they constitute full proof of their contents and signatories, it is even more true that they do not enjoy such presumption if they are challenged by the opposing party. Indeed, it would be sufficient for the opposing party to deny having been the sender or recipient of the email, because if it is submitted in printed form, the only thing it proves is that a message was sent from a particular sending account to a particular receiving account. But does that guarantee that one person actually sent an email to another? Not necessarily. Hence, even in the absence of a challenge by the party against whom the email printout is offered, the judge should apply the rules of sound judicial discretion rather than treat it as full proof, since there is no certainty as to those two elements.
For that reason, the use of expert examination is recommended to introduce email into the proceedings, so that the judge may take into account circumstances beyond the mere sending of the email in order to determine whether it constitutes authentic evidence of the disputed facts. It is necessary to examine whether the computer from which the information was sent is for private use or accessible to third parties, whether it was located at home or in the office, whether it is protected by access credentials, whether it was sent from a computer or from a mobile device, and any other element that may be relevant when determining whether a particular person was in fact the sender or recipient of a given message.
In light of the foregoing, it is clear that any person wishing to use such emails as evidence in support of his or her claims in litigation must themselves take the most appropriate measures to ensure the intended evidentiary effectiveness. Thus, for example, I can suggest that when a contract is signed, the contracting parties designate the email address that will serve to receive notifications arising out of the contractual relationship, in order to create conviction that the sender and recipient are the holders of that account.
Another protective measure would be to have an electronic signature service, because if an email has been signed with a certified electronic signature, pursuant to Article 24 of the Electronic Signature Law, it shall have the same validity and the same legal and evidentiary effects as a handwritten signature with respect to the data contained in the document or electronic data message in which it is used. Likewise, Article 25 of the aforementioned special law contains two legal presumptions: (a) that the certified electronic signature belongs to its holder; and (b) that the data message linked to the certified electronic signature has not been modified since the moment it was sent, if the result of the verification procedure so indicates.
Accordingly, it is desirable that parties, throughout a commercial relationship, adopt appropriate technological measures as an additional protection mechanism to lend credibility to the use of email as evidence in civil or commercial proceedings. In other words, it should form part of a corporate policy aimed at reducing risks in the face of potential litigation.
