Presentation and evaluation of the electronic signature in a judicial process

On many occasions when companies consider the implementation of electronic signatures in electronic documents management processes, such as contracts documentation management and other documents with legal relevance, it is common for legal departments and advisors to participate in the decision-making process.

One of the most common questions made by legal departments is whether digital documents signed electronically are valid and/or can be used in legal proceedings.

Presentation of the electronic signature as evidence in a judicial process

In the first place, it is important to remember that the different regulations where the legal value of the electronic signature is recognized in the countries normally establishes, among others, the legal effect of equivalence between the qualified electronic signature with the handwritten signature and the declaration of admissibility of the electronic signature as evidence in judicial proceedings.

European Union’s countries for example, regulate the recognition and legal value of the electronic signature in general terms through Regulation (EU) 910/2014 eIDAS, which establishes in its article 25th the following: 

“Article 25
 Legal effects of electronic signatures 
1. An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures. 
2. A qualified electronic signature shall have the equivalent legal effect of a handwritten signature.
…”

This regulation allows us to see an example of how the legislation establishes rules for legal proceedings that explicitly  recognize the admissibility of electronic signatures in any kind of judiciary proceedings, which could additionally also be applied to administrative ones. The legislator, in this way, ensures the use of the electronic signature with proper guarantees for the relying parties, providing legal certainty to the digital transformation processes of secure operations, traditionally carried out through analog means.

Now, once the question of whether it is possible to use electronic signatures in judicial proceedings has been clarified, the next natural question that we ask ourselves is how we can present and propose this evidence in a judicial process. That is, if the electronic document is, for example a contract that must be accompanied along with lawsuit, or if it is another document that must be presented in any other stage of the process, does it have to be printed in order to be presented? Does the evidentiary assessment have to be carried out over the physical document? In general, in order for the substantiation to be carried out, a printout of the electronic document must be made?

The answers to these questions may vary slightly from one country to another due multiple factors such as legal practices, procedural provisions especially applicable to the case in question, lack of knowledge, preparation and familiarity of the judges about these kinds of electronic evidences, necessary tools and courts equipment to substantiate them among others. Therefore, it is important to pay attention to the criteria contented in settled case law. Nevertheless, in this article we will present a series of considerations that can be taken into account when deciding how to proceed.

Format and means of presentation of the electronic document in a judicial process

First of all, it is very important to remember that, in these cases, the original document will always be the document in its digital format, since the printing of an electronic document constitutes only a physical representation of the original, and its value it the same as a simple or photostatic copy of the original document which the counter party can easily refuse to acknowledge its validity.

The evaluation of the qualified electronic signature equivalent to the handwritten one, is carried out directly on the electronic document. Consequently, when by legal imperative it is necessary to produce or present the original document and this is an electronically signed document, it must be produced in its native form, that is, digitally.

Once it has been clarified that the presentation of the electronic documents must be done in its native format, the next question we have is how this evidence should be presented in court. On this, as we discussed, the document must be presented in its original format, so it will be necessary to present it to the court through an electronic support.

Regarding the last aspect, in those countries where the management of the judicial files is carried out through digital platforms, the presentation of the documentation in its native format could be done through these platforms, uploading on them the original document electronically signed, through which the court might validate the authenticity and integrity of the signature, as well as its qualification. It is important to know that a vast majority of these judicial files management platforms incorporate the use of electronic signature certificates as an authentication mean, so they are familiar with the validation and management of electronically signed documentation.

On the contrary, in those cases where the management of the judicial file is not carried out natively in digital format, the contribution of the proposed evidence must be made by providing it in an appropriate electronic support (ie cd, pen drive, dvd, etc.), which must be delivered to the court for its custody and treatment.

Regarding this last aspect, the Spanish Civil Procedure Law regulates that the presentation or consignment of the electronic document in its original format does not impede from also being presented in a physical format that facilitates the integral management of the judicial file that is handled in paper. Additionally, this regulation stays they can also be presented alongside with experts rulings as a mean of proof, to certified or to robust the validity of electronic evidence.

Uanataca issues official rulings to its clients of qualified electronic signature services for presentation in court

Uanataca, as a Qualified Provider of Electronic Trust Services, provides as an added value to its qualified electronic signature services the issuance of expert rulings for strengthening the evidentiary capacity of our clients.

In this sense, customers of the qualified electronic signature service of Uanataca can request an official certified ruling to be presented before the Court to reenforce the electronic evidence where the quality of the qualified electronic signature is certified, also providing the correspondent validation, that is:

- certify the identification of the signer of the document;
- certify that the qualified electronic signature on the document it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable
- It certifies that the qualified electronic signature meets the requirements established in the regulation to be considered equivalent to the handwritten signature.

In this way, the presentation, proposal and admission of the qualified electronic signature in court is carried out in a simple and transparent manner, as it guarantees the evaluation of the electronic signature as a mean of proof with legal favorable presumptions of functional equivalence to the handwritten signature.