Standards of evidentiary authority for electronic documents
(A commentary on updates to the executive regulations of the Egyptian electronic signature law in light of the decisions of the Court of Cassation)
Seniro Legal Consultant At Shura Law Firm
Professor at the Faculty of Law, Ain Shams University
Fellow of the Chartered Institute of Arbitrators (London)
The Minister of Communications and Information Technology issued Decision No. 361 of 2020, including the amendments to the original executive regulations of Law No. 15 of 2004 regarding the regulation of electronic signature. The amendments addressed several sectors of the original executive regulations, which included, on the one hand, the definition section, and on the other hand, a number of technical and technological standers, which together constitute conditions for the electronic signature, writing, and electronic documents to acquire evidentiary authority.
Our research focuses, in this commentary, on the most important sectors in which the new executive regulations has made amendments on the one hand and the additions it has provided on the other hand, all those within the framework of technical and technological requirements to recognize the authority of writing and electronic documents as well as electronic signature in evidence domain. Since the Court of Cassation issued two rulings, on a date earlier than the date of the implementation of the executive regulation, in which it specified the conditions for the recognition of the evidentiary authority for electronic deeds (that conditions which were explicitly stipulated in the aforementioned amendments) it would be useful to present the creative analysis included in the Cassation judgments, which set the impact of the lack of technical and technological standards provided for in the executive regulations, whether in its original drafting or in the amended version.
The executive regulations of the law (whether previous or new) mentioned two categories of technical and technological standards related to the conditions stated by the law. While the first group of standards came in a general form, the second group of standards came unique way, which goes to every condition provided far by law for the purpose of verifying that its requirements are met.
The research reveals that the standards set out in the new executive regulations of the electronic signature law to verify the availability of the authentic conditions opposability stipulated by the law do not differ much from those provided for in the previous regulations, except that the new regulations take into consideration, when drafting its new or amended provisions of the previous regulations, the needs that are revealed by the practical application of the system for creating electronic signature data and its connection with the documents placed on it, in the light of the developments that occurred to the electronic data editing systems, as is provided by the regulations, whether the previous or the new.
The question arises as to how the courts, when dealing with disputes, take in consideration the technical data on which the general provisions of the law are based, and in particular determining who falls the burden of proving the availability of technical standards requirements as detailed in the executive regulations. The Court of Cassation has recently had the opportunity to address the difficulties that the courts are likely to face when applying the requirements of substantiation of the validity of the electronic documents in context of the culture of manual editing of documents, a culture embedded in the corridors and arenas of the courts. This was what the Court of Cassation was able to overcome, even before the issuance of the executive regulations in Its new version, the details of which have been addressed in the commentary.
As to the impact of the lack of technical and technological standards in light of the Cassation Court decisions, the court had the opportunity to address a number of issues raised by the use of electronic means, such as e-mail messages, in contract conclusion that was the subject of dispute or in its implementation, especially in the event that these messages were disputed or denied by one of the opponents, and then the question arises whether the mere denial would strip the electronic document (message) of its value in evidence, or is it merely an engine or justification for verifying the authenticity of the electronic message through the technical and technological standards stipulated in the executive regulations, so that this last matter constitutes a primary issue that must be addressed by the court before which the dispute is launched.
The Court of Cassation issued some judgments that included a number of legal principles that it extracted from the texts of the electronic signature law and its executive regulations, and indicated in it the role played by the technical standards mentioned in these texts, especially the impact of their lack of availability. The most important principles is related to correspondence by eــــmail when its photocopies (paper extracts) are stripped out or denied ــــ the principle is that it has no evidentiary authority except to the extent that the conditions stipulated in the law of electronic signature and standards provided for in its executive regulations are fulfilled.
It follows that when those conditions and standards are met, the e-mail messages will gain authenticity to prove in equal footing to documents written on paper and appendixed by a written signature, and hence it is enough to whoever adheres to these messages, to provide the material evidence for them represented in their paper extract.
In Conclusion, a the person familiar with the rationale involved in the rulings of the Court of Cassation referred to in this research can determine that the Court of Cassation was able, through its brilliant analysis of contract data via electronic means, to extract the principles dictated by the legislator’s keenness to protect the rights of both parties to the electronic contractual relationship that couldn’t be subject to the traditional rules pertaining to paper documents. This is for my believe an evident creativity, in which the Court of Cassation provided guidelines that were represented in legal principles extracted from the special nature of electronic documents and from the purpose intended by the law in organizing its authority in evidence domain.