Electronic documents

What are they?

We can say that electronic documents refer to those documents contained or stored on computer equipment or media. They are documents produced by automated means, contained on a medium – tape or disk.

Classification

Doctrinally, electronic documents can be classified as follows:

1. Taking care of your signature. A distinction is made between signed and unsigned electronic documents. Now, among those signed, there are those made with an electronic or other type of signature. The existence of an electronic signature affects the guarantees of authenticity and integrity of the document. In turn, and within the documents with electronic signature, documents with advanced electronic signature and recognized electronic signature are also distinguished. The advanced electronic signature is understood as one that allows the signer to be identified and detect any subsequent changes to the signed data, which is uniquely linked to the signer and the data to which it refers and which has been created by means that the signer can maintain. under your control; and the recognized electronic signature is understood as the advanced electronic signature based on a recognized certificate generated by a secure signature device. In our country, in this regard we have the Electronic Signature Law (Legislative Decree No. 133 of October 1, 2015.
2. Based on scientific criteria. A distinction is made between documents prepared by the computer and documents prepared by means of the computer. The first are internal, since they have been called businesses between computers and the second are external, created in ordinary traffic and with a vocation for externalization.
3. Considering the mode of creation. This criterion refers to documents prepared by the computer. Among these we distinguish: a) electronic documents in the strict sense and b) documents in the broad sense. The latter are the electronic documents already created and in the dissemination phase. Strictly speaking, it would be possible, in turn, to distinguish: i) volatile electronic documents: those created in RAM memory and that disappear when the computer is turned off; ii) permanent electronic documents: these are those that are inserted into the floppy disk, hard drive or pendrive; iii) unalterable electronic documents: these are those that are fixed in non-rewritable ROM or CD-ROM memory; iv) electronic documents with an access device, that is, those that need to “go through customs” to operate, example: magnetic cards.

Similarities and differences

Legally speaking, physical and electronic documents present similarities and differences when it comes to being provided as evidence.

Regarding the similarities we can mention:

1. They are suitable supports to contain a declaration of will and can be presented as evidence.
2. For both the written and the electronic document and as a presumption of its evidentiary effectiveness, it is necessary to verify the authenticity of the document.
3. Both are strong means of evidence to the point of enjoying assessed evidentiary effectiveness.
4. Both documents are falsifiable.
5. Both types of documents make up a unit of information that can be expressed through conventional signs that are easily assimilated by its recipient (written document) or can be expressed through “data messages”, either in legible or understandable form or in encrypted form. .
6. The written document and the electronic document are easily transportable and transferable from one place to another on the corresponding supports.

Regarding the differences, the following can be pointed out:

1. The electronic document, unlike the written document, is not directly legible or knowable, but a technical instrument is necessary to access its content.
2. The authenticity and identity of the subscriber of an electronic document is the electronic signature, and not the handwritten one as it is in a written one. To overcome the absence of a handwritten signature in electronic documents, a practical solution has been proposed consisting of recognizing and admitting the electronic signature, formulated in accordance with specific technical and legal methods and as equivalent to the handwritten signature; However, this solution does not solve the problem of admissibility as a means of proof of electronic documents without an electronic signature.
3. The content of the electronic document can be words and images, and also sounds; while the content of the written document can be words and images, but never sounds.
4. The written document that is characterized by being a tangible reality, normally presented on paper; while the electronic document is an intangible reality, perceptible by the senses only if it is translated through a technical means.

Legal nature

When analyzing the legal nature of the electronic document, according to the theory of functional equivalence, the document in electronic format and the document in paper format display identity of legal effects, which results in the consideration of the electronic document as documentary evidence.

Based on the principle of non-discrimination and in order to accommodate new sources of evidence in response to technological advances, identical evidentiary status is granted to the written document and the electronic document, since the essential thing is the existence of a representative object of interest for the process and the secondary thing is the support (paper, audiovisual or electronic) in which it is collected.

In accordance with the provisions established in the Civil and Commercial Procedure Code (CPCM), the conclusion is reached that electronic documents must be treated with the provisions of documentary evidence, since the only variation they present lies in the support that they contain. .

Evaluation of the electronic document

Our system includes two systems for evaluating evidence: sound criticism and assessed evidence.

Starting from the consideration that the electronic document must be treated with the provisions of documentary evidence, it is observed that art. 341 of the CPCM establishes regarding its assessment:

“Public instruments will constitute reliable evidence of the facts, acts or state of affairs that they document; of the date and people involved in it, as well as the notary or official who issues it,” adding: “Private instruments provide full proof of their content and grantors, if their authenticity has not been challenged or has been demonstrated. If it was not proven after the challenge, the instruments will be valued in accordance with the rules of sound criticism."

From the above, it is concluded that the electronic document will be valued in an appraised manner or, in the event that its authenticity has been challenged and has not been proven, it will be valued through sound criticism.

Examples of electronic documents

1. Emails

The evidentiary effectiveness of printing an email as if it were a traditional written document will depend on the procedural attitude of the counterparty. If the email is not challenged – or if it is recognized by the adverse party – it will have the value of full evidence (Art. 341 CPCM) and its effectiveness will extend to its content and grantors. If, on the other hand, it is challenged, its probative effectiveness will be assessed in accordance with the rules of sound criticism; In this case, it may be useful to propose expert evidence to prove its authenticity.

Likewise, the printing of an email in paper format is subject to the rules established for the provision of documents, that is, it must be provided with the claim or with the response to the claim (Art. 335 CPCM).

• Screenshots of internet sites or web pages

Regarding this type of electronic document, we have a precedent issued by the Constitutional Chamber in the Amparo process 356-2014 in which the plaintiff offered as evidence, among others, the printouts of the screen captures through the “Transparent Government” website, to the Ministries of Justice and Public Security, National Defense, Agriculture and Livestock (MAG) and the Interior. Likewise, it offered a CD-RW disk that contained, among others: the Word format edition of the screenshots from the “Transparent Government” website mentioned above.

In the ruling dated January 17, 2014, the Chamber resolved the following:

 [Considering V.2.Cb] “The screenshots of the 'Transparent Government' website […], contained on the CD-RW disk, are also incorporated into this process through documentary evidence, so it is unnecessary separately assess said information storage medium in the present case.”

[Considering V.2.Db] “On the other hand, Art. 332 of the C.Pr.CM recognizes as private documents those whose authorship is attributed to individuals and those that do not comply with the legal formalities of public instruments. These documents provide full proof of their content and grantors if their authenticity has not been challenged or has been demonstrated (Art. 341 inc. 2 of the C.Pr.CM).

“The impressions of the screenshots of the 'Transparent Government' website [...] constitute private instruments, since they state that they were prepared by [...]. The authenticity of such instruments has not been challenged by the other participants in this process, which is why they constitute evidence of the facts they record."

In accordance with the above, the Constitutional Chamber considered the screenshots of internet sites incorporated through documentary evidence and valued them as private documents.