Francesco Minazzi, Is email authenticated evidence? An Italian case – Comment on Termini Imerese Court’s decision of 02.22.2015

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  1. The case

An Italian Court had to decide on a request for payment of legal fees of a Lawyer against a client. The client had not fulfilled her obligation towards the Lawyer, who sued her, producing as evidence some e-mails.

Therefore, as the court itself said, “To ascertain the right fulfillment of burden of proof regarding whether or not the obligation existed, first of all it is mandatory to establish the evidentiary weight of an electronic document sent by mail”.

  1. What the court said

At first, the Court correctly identified the issue, referring to the definition of “electronic document” as provided in section 1, letter p), of the Legislative Decree 03.07.2005, n. 82 (the so called Code of Digital Administration – “CDA”, a law on the use of digital resources – hereinafter “Code”), according to which an “electronic document” is a “digital representation of legally relevant documents, facts or data”.

Immediately after this statement, the court made its first mistake, saying that “section 20 and section 21 regulate the electronic document and its evidentiary significance when there is a certain kind of electronic signature, but the Code never established the value of an unsubscribed electronic document”. Then the judgement quoted the very language of section 20, which states “The electronic document, its retention on an electronic device and its delivery with telematics, respecting technical rules provided by section 71, are fully effective and relevant according to the provisions of this Code. The judge establishes the eligibility of an electronic document to be considered as a written document and its evidentiary weight, according to its quality, security, integrity and immutability, subject to compliance with section 21”.

The court described all the electronic signatures listed by the Code, mentioning inter alia the so called “simple electronic signature”, provided by section 1, letter q), which is “data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication”: for example, username and password that serve as a method of authentication to access an email account. Indeed, even if it is called “signature”, it should be considered that electronic signature are not a graphical representation on the screen of an hand-written signature: it is an instrument that allows data authentication by linking the document to the signatory.

Then the court had to ask itself whether or not an email should be considered undersigned with a simple electronic signature. This is very relevant, because the court stated that electronic document without a signature has no value.

Furthermore, the Court claimed that “documents, no matter whether electronic or hand-written, that are not undersigned do not have evidentiary, because they are not attributable to no one”.

Assuming that documents sent by e-mail (even the e-mail itself) are considered as executed with a “simple electronic signature”, the court had to check its quality, integrity, security and immutability: indeed, the Court underlines that combining username and password creates a “simple electronic signature”, as described by section 1 of the Code.

Consequently, the court held that the e-mail, as a relevant electronic document, supports the Lawyer’s right to recover his legal fees.

  1. What the Law really says

The judgment is grounded in the law, since it points out to correct provisions, but it also misunderstands the correct interpretation of those provisions.

First of all, the Judge made a mistake stating that the Code did not provide for an unsigned electronic document: the mistake is particularly striking if you think that, this statement is immediately followed by a quote of section 20 of the Code, which provides exactly the significance of unsigned documents. Section 20, indeed, never mentions “underwriting”, unlike section 21, which recognizes a certain evidentiary weight to an electronic document according to the typology of electronic signature placed on it (whether simple, advanced or qualified). If anything, section 21 and section 20 curiously contain the same rule: they provide that the evidentiary weight of an electronic document, no matter if unsigned or signed with a “simple” electronic signature, shall be valued by the judge, according to its quality, security, integrity, and immutability.

The court made his second mistake by saying that statements contained in an unsigned electronic document lack of any value. To be sure, they could have evidentiary weight, according to section 20, subparagraph 1-bis of the Code.

It is a source of concern that the court held that “documents, no matter whether electronic or hand-written, which are not undersigned do not have evidentiary weight, because they are not attributable to no one”. This statement demonstrates a lack of understanding of the difference between hand-written document and electronic document: you could ascribe to a person the last one, even if unsigned.

On converse, no doubt that the combination of username and password could be a “simple” electronic signature that is perfectly suitable to underwrite an electronic document such as an e-mail.

However, there is another mistake in this decision. The court never checked the four requirements indicated by section 20 of the Code (e.g. the name of the lawyer and the name of the defendant in the e-mail address or in the header). To prove the agreement between the lawyer and the client, the court only looked at the content of the e-mails, the exchange between the parties, and the request for payment sent by letter. These are extrinsic elements, which say nothing about the quality, integrity, security and immutability of those e-mails. It would be like evaluating the probative value of a hand-written letter from its envelope.

Although the Court gave the wrong reasons, the decision is correct: an e-mail is an electronic document undersigned with a simple electronic signature, so ordering the defendant to pay the Lawyer’s fees.

  1. Conclusion

By not giving the right interpretation to section 1 and 20 of the Code, the Court complicated a simple case.  Also of concern is the lack of analysis of the four requirements of section 20 of the Code.

This decision demonstrates that Italian courts still struggle with IT, a situation which must be solved as soon as possible.

 

*Originally posted (In Italian) on www.francescominazzi.net