Key takeaways to remember about the burden of proof
- Electronic evidence has the same legal value as a paper document (Articles 1365 and 1366 of the French Civil Code).
- The burden of proof rests with the claimant (the party asserting the facts), but it may shift through the use of qualified eIDAS services (electronic seal, timestamping, archiving).
- The validity of digital evidence can be demonstrated through qualified timestamping, electronic seals and secure archiving.
Definition of the burden of proof
Historically, the burden of proof refers to the obligation imposed on a party to establish the facts it relies upon in order to support its claim before a court.
With the widespread use of digital documentation, this concept now extends to electronic evidence.
The burden of proof therefore makes it possible to demonstrate the integrity of an electronic document in the event of a dispute.
Different types of documents may serve as evidence before a judge: emails, contracts, digitised documents, electronically signed files, instant messages.
This is subject to the condition that their validity can be demonstrated through a recognised method.
Electronic evidence may then be relied upon in a wide range of contentious situations, for example:
- Contracts: to demonstrate an agreement concluded by email, SMS or electronic signature, or to challenge amendments to a contract.
- Human resources: to justify working hours or unpaid overtime.
- Fraud: to verify banking logs or emails evidencing the misappropriation of funds or falsified invoices.
- Procurement: to establish non-compliant delivery or non-payment.
- Compliance: to verify product traceability.
What does the law say about electronic evidence?
The law recognises electronic evidence, provided that it satisfies the conditions set out in Articles 1365 and 1366 of the French Civil Code.
Article 1365 of the French Civil Code (1) states that a written document may be created on any medium, including digital media, provided that it is legible.
An electronically signed contract or a dematerialised invoice therefore has the same evidential value as a paper document.
Article 1366 of the French Civil Code (2) complements this provision. It states that an electronic document has the same evidential weight as a paper document provided that two conditions are satisfied:
- the author of the document must be clearly identified,
- the document must be created and stored in conditions that ensure its integrity.
It is therefore entirely possible to rely on digital documents (dematerialised contracts, emails, digitally signed invoices, etc.) in the event of a dispute.
However, these documents must be issued and archived in a manner that guarantees their integrity.
Who bears the burden of proof?
The burden of proof lies with the party asserting a fact (fraud, breach, failure to comply, etc.).
In practice, the party making an allegation must produce evidence capable of supporting its claim. Such evidence must possess sufficient evidential weight to be admissible before a court.
A dispute may therefore relate to the author or origin of a document.
It may also concern the integrity of the document (has it been modified?) or its chronology (when was it created or sent?).
Similarly, evidence may be requested concerning the process used to preserve a digital document (chain of custody, access logs, records) in order to verify that it has not been altered.
Reversal of the burden of proof
Although the burden of proof generally rests with the claimant, courts may in certain circumstances apply a reversal of the burden of proof.
In such cases, it is no longer the claimant but the opposing party who must demonstrate that the alleged facts are incorrect.
If a company uses an electronic signature, timestamping or archiving service that is not officially recognised, it will have to prove the reliability of that service in the event of a dispute.
For example, if a customer challenges the validity of an electronically signed contract that was not produced using a recognised security service.
In that situation, it will not be for the customer (the claimant) to demonstrate the defect. Instead, the company must provide technical evidence showing that the signature was not falsified and that the process was secure.
Conversely, if the company uses a qualified service recognised under the eIDAS Regulation, the presumption of reliability operates differently.
For instance, if a supplier disputes a purchase order signed using an eIDAS-compliant signature (3).
In that case, it will be for the claimant to prove that the document has been altered or that the service is unreliable.
The company does not have to justify the validity of the process. The regulation treats the service as reliable by default.
How can the validity of digital evidence be demonstrated?
The validity of digital evidence is not simply asserted. It must be demonstrated through recognised mechanisms ensuring integrity and traceability.
To achieve this, organisations may rely on qualified timestamping services, electronic seals and electronic archiving systems that comply with applicable standards.
Qualified timestamping
Qualified timestamping constitutes legal proof of the date and time of a document (contract, invoice, etc.) or of an action (modification of document data, sending of an email, etc.).
This timestamp is certified by a recognised trusted third party, such as Evidency, a qualified provider under the eIDAS Regulation.
Electronic signature and electronic seal
An electronic signature certifies the identity of the signatory when the signatory is a natural person.
However, recent case law has rejected certain qualified electronic signatures. It is therefore advisable to reinforce their evidential weight by also applying a qualified timestamp to those electronic signatures.
An electronic seal, by contrast, certifies the identity of a legal person (company or public authority). It also guarantees that the content of the document has not been modified since it was issued. This evidentiary mechanism is recognised in the context of regulatory inspections, fraud investigations or litigation.
Electronic archiving
Electronic archiving serves to demonstrate that a digital document has been preserved over time. It also shows that the document has not been altered and that all associated evidence is present (metadata, logs and document versions).
What conditions must be met for electronic evidence to be valid?
With the increase in document fraud, particularly facilitated by artificial intelligence, organisations must protect themselves through qualified mechanisms. This requires integrating timestamping and electronic seal solutions directly into document creation processes and information systems. These solutions allow organisations to maintain reliable electronic evidence in the event of a dispute. They make it possible to demonstrate the identity of the document’s author, the date of creation, and any subsequent modifications. All these requirements are governed by the European eIDAS Regulation.
Accordingly, only qualified services benefit from a legal presumption of reliability, which may allow a reversal of the burden of proof in the event of litigation.
Sources
- https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032042466
- https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032042461
- https://fntc-numerique.com/wp-content/uploads/2023/03/Comprendre-le-reglement-eIDAS-Volume-1.pdf
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