Electronic evidence in Spanish civil procedure: where wishes clash against reality

1. Electronic evidence in Spanish civil procedure: where wishes clash against reality Julio Pérez Gil Universidad de Burgos

2. Summary • Introduction: functional equivalence • Legal background • Electronic evidence in civil trials • Concluding remarks

3. Introduction: functional equivalence

4. What is to proof? (thema probandi) Judicial answer have to be coherent with social reality Fundamental right to use the evidence means useful for defense How to proof? (modus probandi) electronic evidence in the proceedings does not imply exhausting the range of probative options relating to juridical electronic acts In the praxis: electronic evidence is very scarce Preliminary

5. Principle of functional equivalence: Representative nature They are not the same but they are considered as if they do Consequences: Equivalence make things easier Uniform “procedural treatment” Limits: Not every file is representative Not every digital file has an analogical referent: Transformation: Evidence by ‘issues of information’ Electronic files documents Equivalence between digital files and documents

6. LEGAL BACKGROUND

7. Ley Orgánica del Poder Judicial (Organic Law of the Judiciary) (1985) • Art. 230: • Both the courts and the defendants can use advanced technological media when available (nº 1, 4) • Courts can issue valid and legally effective public documents in electronic form (nº 2) • Court can administer proceedings using computerized media (nº 3) • Supervision of the General Council of Judicial Power (nº 5). • LexNet: RD 84/2007, 26 January, communication acts by electronic means • In praxis: near a wish

8. Ley de Enjuiciamiento Civil (Ley 1/2000) (Civil Procedural Law) • Common procedural norm • art. 299.2: • a) “‘Means of reproduction for words, sound and images’ (photographs, audio and video medias, including digital ones) • b) “Instruments that allow storage, access or reproduction of words, data, figures and mathematical operations carried out for accounting or other purposes, of relevance to the proceedings • Electronic files They are not documents, but are considered analogs (Explanatory memorandum)

9. LSSI y CE (Ley 34/2002) (Law IS services and EC) • Art. 24 • 1. Proof of having entered into a contract through electronic means and the obligations which are derived from it, will be subject to the general rules of the legal system and, if it is the case, to the electronic signature regulations • 2. In any case, the electronic media which records a contract concluded by electronic means will be admissible in a trial as documentary evidence • They are documents when refer to ‘services of the Information Society’

10. Ley de Firma Electrónica (Ley 59/2003) (Electronic evidence Law) • Electronic evidence is not mean of evidence, but object of evidence • 3.9: “the legal effects of an electronic signature, which does not meet the requirements of a recognised electronic signature in relation to the data with which it is associated, because of the mere fact of it being presented in electronic form, will not be rejected’” • 3.8: “the media in which the electronically signed data is found shall be admissible in trial as documentary evidence” It is documentary evidence only if it is electronically signed (!)

11. Ley de Procedimiento Laboral (Labour Procedure Law) (1995) • Art. 90.1 “The parties will be able to make use of as many means of evidence as are regulated in law, mechanical means of reproducing words, images and sounds being admitted as such” • except where they have been obtained directly or indirectly in such a way as to violate fundamental rights and public liberties • (exclusionary rule, art. 11 LOPJ)

12. ELECTRONIC EVIDENCE IN CIVIL TRIALS

13. Assurance of the source of electronic evidence • 25.1 LSSI: “The parties may agree to a third party filing the manifestations of consent that are contained in the electronic contracts and that record the date and the time at which such communications took place” • 27.1.b) LSSI: obligations of service providers that undertake electronic contracting to inform the end-user in a clear, understandable and unmistakable manner and before initiating contractual procedures, as to whether the electronic document in which the contract is formalised will be stored and if it will be available at a later date • 297 LEC: assurance of source of evidence • copying and storage of data • Prohibition of access or use • Render data technically inaccessible • Seizure of devices

14. Diclosure • Timing • As soon as possible • Media • Any • Copies • Written transcript • Instrumental means of evidence

15. Giving evidence from a distance • art. 135.5 LEC • permits the on-line disclosure of documents to the cause • subject to the technical potential of the court and the parties • Does not refer to computer files • For the purpose of evidence and to comply with the legal requirements that call for original documents: • made available to the court within three days following their delivery • LexNet: RD 84/2007, de 26th January, communication system with the administration of justice

16. Cross examination • Art. 384: • “by the means brought by the party proposing the evidence or those that the court is minded to use” • in such a way that the other parties can, with the same knowledge as the court, make allegations and offer evidence as is their right by law • Files without electronic signature • Transcript • Commonly used instruments • Technical complexity • Electronic simulations • Image or sound electronic files • Electronically signed documents

17. Contesting electronic documents • art. 326 LEC: • when the party with an interest in the efficacy of an electronic document requests it and its authenticity its contested, matters will proceed in accordance with the provisions of article 3 of the Law of Electronic Signature (!) • Art. 3 LFEL • Nº 8: allows contesting authenticity of the electronic signature, not to the document • Advanced signature: requirements? • Recognised signature: art. 326.2 LEC (comparison of letters)

18. Assessment of electronic evidence • 384.3 LEC: • according to the rules of sound judgments in accordance with their nature • Legal assessment? • Files with public documents • Judicial • Notaries and Registers • Official documents • Files with private documents

19. Thank you for your attention!