Introduction
Proving transactions undertaken on the Internet and online payments is one of the major issues confronting electronic commerce. Until recently, because transactions have traditionally been based on paper documents and handwritten signatures, French law was not well adaped to the online environment.
The French Civil Code requires evidence in writing in most cases. So either electronic documents are not accepted as evidence or are accepted with a lesser evidentiary value attached to them. Because French law was constraining the development of online transactions, reform was needed in order to give recognition to the validity of electronic transactions and to build the trust of e-commerce participants.
Although the courts have already begun to interpret the Civil Code more broadly in order to recognize the evidentiary value of electronic documents under certain circumstances (Cass.com, December 2 1997, JCP G 1998, Act p905), most commentators felt that legislation was needed in order to consolidate and specify the advances made by jurisprudence.
Towards this end, a new law entitled Adapting Evidentiary Law to Information Technology and Relating to Digital Signatures was enacted on March 13 2000. This reform does not concern actes authentiques (ie, deeds executed by notary) as this will be addressed by an upcoming decree.
The principal provisions of the new law concern electronic documents and digital signatures.
Electronic documents
The document or 'written evidence' is given a functional definition, which is neutral with regard to the nature of the medium. A new Article 1316 was added to the Civil Code and provides as follows:
"Written evidence results from a series of letters, characters, numbers or any other signs or symbols that have an intelligible meaning, regardless of the medium or means of transmission."
To be accepted as evidence with the same weight as paper documents, one must be able to (i) link the document to its author and (ii) guarantee the integrity of its establishment and conservation. No particular technology or method is prescribed. The intention is for the courts to define what is sufficient in the context of the technology in use at the time.
The courts are to settle disputes between written evidence, the justice using all means at his/her disposal to determine which evidence is the most reliable, regardless of the medium. The major innovation here is to be medium neutral, that is, not to establish a priority between paper and electronic documents.
Digital signatures
The law defines the signature by reference to the functions it performs. A signature identifies the author of the document on which it is appended and shows the author's consent to the content of the document. Therefore, the new definition of the signature covers digital signatures as well as handwritten signatures.
The general terms used for defining signatures (no reference is made to a particular technique) ensure that the terms will be suited to technical advances.
The evidentiary value of the signature depends on its reliability, the conditions of which are to be determined by a future decree. This decree will implement the European Directive on Electronic Signatures enacted on December 13 1999 and will notably have to address the issue of third-party certifiers, who are to play a key role in authenticating digital signatures and guaranteeing the integrity of the content of an electronic document.
For further information on the this topic please contact Bradley L Joslove at Franklin by telephone (+33 1 45 02 79 00) or by fax (+33 1 45 02 79 01) or by e-mail ([email protected]).
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