ELECTRONIC DOCUMENTS AS LEGAL MEANS OF EVIDENCE IN GREECE, του Ι.Ιγγλεζάκη, Αναπλ. Καθηγητή Νομικής ΑΠΘ

*του Ιωάννη Ιγγλεζάκη (IOANNIS IGLEZAKIS), Αναπληρωτή Καθηγητή  Νομικής Σχολής, Αριστοτελείου Πανεπιστήμιου Θεσσαλονίκης

Athens Single-Member Court of First Instance 1327/2001

Judicial payment order based on an electronic document. Mechanical representations (Art. 444 par. 3 Code of Civil Procedure). Probative effect of e-mail messages.

Published in: Dike International (2001) 457 ff.

The court held that:

“An electronic document is considered as a set of data records in the hard disk of a PC, which are processed by the central processing unit and represented according to the commands of a computer program in a readable manner on the computer’s screen or on the printer attached to it. An electronic document does not constitute the elements of written documents, under the Code of Civil Procedure, mainly because of the lack of the element of constancy in its incorporation in a durable material. It cannot also be subject to direct [or tangible] evidence (as it is suggested by one doctrinal opinion), but it is an intermediate form, which has been equated wisely by the legislator to private documents, because of the proximity of electronic documents to private documents (see Koussoulis, Contemporary Types of Written Transaction, 1992, pp. 138-142 [in Greek]). According to the teachings of common experience, the function of e-mail as a means of communication over the Internet requires, apart from the connection to an ISP that provides this service and the operation of specific software installed permanently in the user’s PC, the use of a specific code. With the help of this code the user is recognised by the system either as a sender or as receiver of electronic messages. This code constitutes the electronic (e-mail) address of the user, which is defined in an original manner by the user himself with characters of his choice, combined with the symbol “@” and with characters of the ISP’s choice. In this way, the specific combination of characters would refer only to the user, who had defined the code, and it would not be legally possible to be used by anyone else. The representation of the sender’s address on the message identifies him absolutely towards the sender, so that it is not possible to confuse him with other users of the same system, whereas the identification of the user with the content of the message is indisputable.

For an e-mail message to be subsumed under the rules of Art. 443 and 444 Code of Civ. Proc. it is the understanding of its function important, since it is not just an electronic document, stored in the software of a PC, or a document whose representation is transferred on-line or off-line (e.g. telefax, telex). The technology of e-mail transmission leads to the identification of a message to the sender, in a way that the message would not be transmissible, unless it is accompanied with the electronic address of the sender and, of course, it has a concrete receiver. This has as a consequence that during the transmission of a message via e-mail the declaration of will of the sender is identified with his electronic address and constitutes a whole, so that the delivery from the receiver would be technically feasible. Thereby, the form or the order of the representation of the e-mail address in the document is, of course, of minor importance.

Consequently, the definition of the e-mail address in a unique manner from the user himself and its reference in every electronic message sent, constitutes evidence as to the identity of the issuer. The mechanical representation of the electronic message in a document satisfies the concept of the private document, which has probative weight on the part of the issuer, according to the provision of Art. 444 paragraph 3 Code of Civ. Proc. and by analogy to the rule of Art. 443 Code of Civ. Proc. (combination of Art. 443, 444, 445 of Code of Civ. Proc.). This unique for every user electronic address that has been defined from the sender himself has the character of a hand-written signature, even if it does have the traditional form of the latter. The foregoing is so, regardless of the position, where the electronic address of the sender appears in the text that is attached to the message during its appearance on the computer’s screen or its mechanical representation on paper’. ,,,

Therefore, the legally ratified copy of the electronic message sent that is saved in the hard disk of the recipient’s PC constitutes conclusive evidence for the fact that the declaration of will in it originates from the issuer-sender of the message, according to the provision of Art. 445 Code of Civ. Proc. Furthermore, the function of the system, as described above, implies the risk that the sending of the message could have originated from another person than the one, which this particular e-mail address belongs to, making use (in any way) of the e-mail address without the approval of the owner of the address. The possibility of a defective e-mail message makes a reference to the provisions on falsity of the Code of Civ. Proc. (Art. 460 et seq.). It also establishes a reversion of burden of proof, which is allocated to the opposing party (see Kousoulis, p. 147), since the function of the system of e-mail provides safety as to its correct performance. Any errors occurring are not due to system defects, but to interference by a third party, which is a fact that lies in the risk domain of the sender’. …

Using these methods [exchange of electronic documents via e-mail or WWW] the contracting parties recognise the validity of contract forming, since the identity of the sender and the content of his declaration of will, as it is secured through a reference of his e-mail address in the electronic message, are not disputed. Consequently, the proof of the declaration of will of the contracting parties in contracts negotiated via email, where the Greek law is applicable, is made possible by ratification of copies of contracting parties’ e-mail messages, which are stored in a PC’s hard disk…”

Note: I. 1. The present case is of eminent importance, since it is the first judicial payment order in Greece that is issued on the basis of an electronic document and in particular, of an e-mail message. The Court, who issued the 2 payment order, recognised the probative effect of electronic documents, which are deemed from the court as mechanical representations, according to Art. 444 par. 3 Code of Civil Procedure; this provision provides for that mechanical representations are considered as private documents, having therefore the effects of the latter under the law. The fact that the court regards electronic documents as equal to private documents signifies clearly the importance of modern information and communication technology; it also contributes to the legal recognition of electronic documents, such as the e-mail.

The issue of the validity of electronic documents as legal means of evidence has been discussed extensively in Greek legal theory even before the adoption of an EU Directive concerning electronic signatures[1] . The work of legal scholars in this field provided the court that dealt with the present case, with the theoretical basis and with an understanding of the function of electronic documents. The court expressed, moreover, thoughts about the technical function of e-mail communication, which exceed the average knowledge of Greek judges. This quite positive attitude of the court has been criticized on the ground that it had not used an expert opinion[2] . However, this criticism is unjustified, because the appointment of an expert lies in the court’s discretion (Art. 368 par. 1 Code of Civ. Proc.). [3]

2.It must be noted, however, that it is not usual that the court gives such an extensive argumentation in order to justify his decision. Indeed, a judicial payment order [διαταγή πληρωμής, diatagi pliromis] is a summary proceeding, which takes the form of an order for payment that is issued by the court on the basis of written documents, i.e. negotiable instruments, such as bills of exchange, cheques, promissory letters, etc. Since this particular proceeding is designed to achieve acceleration, it takes place without hearing the defendant and without any examination of the merits on the claim. In practise, the court order is prepared by the plaintiff and is only stamped by the court, if the claim is justified. Accordingly, the plaintiff can obtain a writ of execution and only in the case that the defendant wants to contest the proceeding, he may lodge an objection to the order, in order to initiate an ordinary court procedure[4] .

The present case is exceptional, because the court issued a founded payment order, since it recognised the importance of the issue concerning the evidential weight of electronic documents. Taken into account that a judicial payment order is issued, when a dept can be proven on the basis of public or private documents, it was considered essential for the court to justify the characterisation of e-mail messages as mechanical representations and, accordingly, as private documents. Therefore, the present court order is an important step for the development of a case law concerning electronic documents.

3.The legal framework concerning the validity of electronic documents in Greece is thus defined by specific legislation. More precisely, the use and legal recognition of electronic signatures is regulated by the Presidential Decree 150/2001, which transposed the European Directive 99/93/EC of the European Parliament and of the Council of 13 December 1999.[5] This general framework will be examined accordingly, on the occasion of the present court order.

ΙΙ.1. The dematerialization of modern transactions, mainly due to rapid developments of information and communication technology, is changing radically the law of evidence .[6] New forms of business (e.g. EDI transactions, e-commerce [7]) and communication (e.g. e-mail) are emerging, which require the interpretation of existing law and the elaboration of new procedural rules. Hence, a suitable general legal framework is considered necessary, as the existing one does not satisfactorily meet the needs of an online community[8] . The regulation of modern forms of communication and transaction is therefore essential to establishing legal certainty especially in the field of ecommerce, in order to take full advantage of the new commercial opportunities. An important factor in this development is the growth of electronic commerce, which is fuelled by innovating technology and globalization.[9]

2. A major problem in this context is the issue concerning the validity of electronic documents. Whereas a hand-written signature is required only in a small number of transactions,[10] the laws of evidence in most national legislation impose the need for penned signature on paper documents . [11]Such a requirement, however, is not feasible where transactions take place over the Internet. It is suggested, therefore, to submit electronic documents to tangible (or direct) evidence (Greek: αυτοψία, German: Augenschein), an approach which is the prevailing opinion in Germany[12]. It is questionable, however, whether this kind of evidence can be utilised for electronic documents .[13] The Greek law of evidence provides for a more appropriate solution. As mentioned above, Art. 444 par. 3 Code of Civil Procedure provides that, as documents are considered, among others, mechanical representations[14] . Pursuant to this provision, mechanical representations are equated through a legal fiction to private documents. Consequently, this form of evidence is regulated pursuant to the provisions concerning private documents. A question arising hereafter is what are these mechanical representations. Pursuant to legal doctrine, their characteristic feature is the transmission of messages via a certain machine. In particular, a message is transferred from one machine, which translates the message into a machine code, to the machine of the recipient. Then it is decoded into symbols legible by humans and finally, it is represented on paper[15]. As it is apparent, electronic documents can be regarded as mechanical representations, pursuant to Art. 444 par. 3 Code of Civ. Proc., since they meet the requirements mentioned above. [16]

III. 1. The jurisprudence of Greek courts has been confronted in some occasions with problems posed by electronic transactions, such as the evidential value of bankbooks. Regarding the legal validity of bankbooks as means of evidence, the court of Areios Pagos held that the bankbook contains computer representations of the initial money deposit as well as subsequent money deposits or withdrawals, which are recorded by the bank’s PC. Even if it does not bear a hand-written signature of the qualified bank employee, the bankbook is equated to a private document, according to the provision of Art. 444 par. 3 Code of Civil Procedure. Consequently, itconstitutes conclusive evidence for the facts or the things it refers to (by way of a mechanical representation), the submission of rebuttal evidence being allowed. [17]

.2In the present case, the court applied the same doctrine, according to which documents (e.g. bankbooks, printouts, etc.) containing records of electronic representations are considered as mechanical representations, pursuant to Art. 444 par. 3 Code of Civ. Proc. It must be noted, however, that the representation of an electronic document in a paper document is regarded as a mechanical representation and not the electronic document itself,[18] which is a set of digital information that represents text or other information . [19]

3.Furthermore, prerequisite for the probative effect of electronic documents regarded as equal to private documents is the recognition or proof of their genuineness (Art. 445 Code of Civ. Proc.). In principle, it is sufficient that a private writing bears the signature of the person who appears to have signed it, [20]this is not a necessary condition, however, in the case of a mechanical representation, such as the electronic document. The confirmation of the issuer of an electronic document can be attained by other elements, which are functionally equivalent to a hand-written signature.

So, regarding the e-mail message, the court sought to attest the genuineness of the message by reference to the function of electronic communication over the Internet. More specifically, the court held that the definition of the e-mail address in a unique manner and its reference in every message sent might constitute evidence as to the identity of the issuer. This type of identification is admissible, but it presupposes that the contracting parties know each other’s e-mail address.

 However, this is not always the case. It must be noted that the problem of identity is one of the best-known features of the Internet[21]. Since each e-mail address is defined from the user arbitrarily, a user’s true identity has no necessary connection with his physical identity. Of course, if the particular email address of a person is known through other means, the identification of that person poses no problems. But when communication takes place for the first time, it is necessary to establish the identity of the communicating parties . [22]

4.Furthermore, open networks as the Internet are characterised by insecurities, which are typical, such as that the messages can be intercepted and manipulated, that the validity of the documents can be denied and personal data can be illicitly collected.[23] Therefore, in order to build trust and confidence in electronic communication, it is necessary to use sophisticated tools such as electronic signatures and cryptography. In particular, electronic signatures [24]can guarantee the identity of the communicating parties as well as the integrity of messages. An electronic signature is becoming consequently a substitute to a hand-written signature.

IV.1. As it regards electronic signatures and certification services, the EU adopted recently the Directive 1999/93/EC, which has been transposed in Greek law, as it has been already mentioned. The scope of the Directive is to facilitate the use of electronic signatures and to contribute to their legal recognition (Art. 1 par. 1). The EU Directive establishes a general legal framework for electronic signatures and certification services. Concerning the legal effect of electronic signatures, the Directive states that advanced electronic signatures, which are based on a qualified certificate and are created by a secure-signature-creation device:

a) satisfy the legal requirements of a signature in relation to data in electronic form as a hand-written signature satisfies those requirements in relation to paper-based data; and

b) are admissible as evidence in legal proceedings. Furthermore, the EU Directive states that electronic signatures, which do not meet the above-mentioned requirements, shall not be denied legal effectiveness and admissibility (Art. 5 par. 2).

2.The Directive adopts, as it is evident, a two-tier system of electronic signatures, which consists firstly, of “simple” and secondly, of “advanced” electronic signatures. Simple signatures are not denied validity solely on the grounds that they are in electronic form or are not certified. Nevertheless, Member States are free to refuse to recognise electronic signature for any other reason. [25]Advanced signatures, on the other hand, are treated as equivalent to manuscript signatures.

3.The admissibility as evidence of the e-mail message, according to the doctrine of the present court order, corresponds to the regulation of Art. 5 par. 2 of the EU Directive. The court regards that the e-mail address has the character of a hand-written signature and so, it recognises that an e-mail message is admissible as evidence in the Proceeding for Orders of Payment.

4.Greece has transposed the EU Directive by enacting the Presidential Decree 150/2001. The relative provisions concerning the legal effects of electronic signatures (Art. 3) are verbally equal to Art. 5 of the EU Directive. Therefore, regarding the probative effect of electronic signatures, it is clear that advanced signatures, which are based on a qualified certificate and are created by a secure-signature-creation device, are equated to private documents.

However, the Greek legislator has not made any provision as to the precise legal effects of electronic signatures. It is not clear, therefore, if the law establishes legal presumptions concerning the authenticity and integrity of an electronically signed document[26] or if it establishes a legal fiction, according to which, documents with electronic signature are equated as to their effect to private documents. The establishment of a legal fiction is, according to legal theory, the most inherent interpretation .[27]

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[1] See e.g. S. Kousssoulis, Σύγχρονες μορφές έγγραφης συναλλαγής (Telex – Telefax – Ηλεκτρονικό έγγραφο) [Contemporary Types of Written Transaction (Telex – Fax – Electronic Document)] [1992], D. Maniotis, Η ψηφιακή υπογραφή ως μέσο διαπιστώσεως της γνησιότητας των εγγράφων στο αστικό δικονομικό δίκαιο [The digital signature as a means for the assertment of authentic documents in Civil Procedural Law] [1998], Ch. Chrisanthis, Η ηλεκτρονική εξυπηρέτηση των σύγχρονων τραπεζικών συναλλαγών [the electronic performance of modern bank transactions] [1997], 393. More recently, K. Christodoulou, Ηλεκτρονικά έγγραφα και ηλεκτρονική δικαιοπραξία [Electronic Documents and Electronic Contract] [2001]. For an overview of the Greek Civil Procedure Law see P. Yessiou-Faltsi, Civil Procedure in Hellas, Kluwer/Sakkoulas [1995].

[2] 2 See K. Christodoulou, Σχόλιο Ι [Comment], Dike 2001, 463.

[3] See K. Beys, Σχόλιο ΙΙ [Comment], Dike 2001, 467

[4] See in particular Yessiou-Faltsi, op. cit (note 1), p. 369.

[5] OJ L 13, 19.1.2000, p. 12

[6] See Koussoulis, op. cit. (note 1), p. 19; idem, Η αποδεικτική δύναμη του e-mail [The probative weight of e-mail], DEE 2001, p. 380

[7] It must be noted that the beginning of electronic transactions dates in the early 1980s, with the implementation of Electronic Data Interchange (EDI) systems that facilitated electronic ordering, stock control, invoicing, excluding, until fairly recently, payment. Nowadays Internet provides an enormous potential for business-to-business and business-to-consumers transactions across open networks. See M. Ford, Identity Authentication and 'E-Commerce', 1998 (3) The Journal of Information, Law and Technology (JILT). See also I. Iglezakis, Τα νομικά ζητήματα της ηλεκτρονικής ανταλλαγής δεδομένων (EDI). Η σύμβαση EDI [Legal issues of Electronic Data Interchange. The EDI Contract], Επιθεώρηση Εμπορικού Δικαίου [Review of Commercial Law] [1997], p. 238 ff.

[8] J. Angel, Why use Digital Signatures for Electronic Commerce?, 1999 (2) The Journal of Information, Law and Technology (JILT).

[9] See J. Dickie, Internet and electronic Commerce Law in the European Union, 1999, p. 1 ff

[10] A hand-written signature is required, when writings constitute an essential element for the validity of an act.

[11]  C. Reed, Internet Law – Text and Materials [2000], at p. 154. Angel, op. cit, (Note 7) p. 9

[12] See e.g. H. von Sponeck, Beweiswert von Computerausdrucken, Computer und Recht 1991, p. 269 ff.

[13] Koussoulis, Contemporary Types of Written Transactions, p. 141

[14] See P. Yessiou-Faltsi, op. cit. (Note 1), pp. 350-351.

[15] See Koussoulis, Current Developments Concerning the Form of Bills of Lading – Greece, in: A.N. Yiannopoulos (ed.), Ocean Bills of Lading: Traditional Forms, Substitutes and EDI Systems, p. 194.

[16] This has been recognized in Greek legal doctrine, cf. Koussoulis, op. cit. (note 1), pp. 142 ff. 5

[17] Areios Pagos 54/1993, published in Ελληνική Δικαιοσύνη [Elliniki Dikaiosyni - HellDni] [1993] 600; see also Areios Pagos 1623/1995, published in HellDni [1998] 133; Athens Court of Appeal 1807/1997, published in HellDni [1998] 201; Athens Court of Appeal 807/2000, published in DEE [2000] 522.

[18] Cf., however, Tentes in: Kerameus/Kondylis/Nikas, Commentary on Code of Civil Procedure [Κεραμέως/ Κονδύλη/ Νίκα, Ερμηνεία ΚΠολΔ] [2000,] Art. 444, nr. 5, p. 799, who supports the view that the hard disk of a computer is a mechanical representation.

[19] Cf. Reed, op. cit. (note 11), pp. 154-155.

[20] Areios Pagos 1254/1990, Dike 1991, p. 514; Yessiou-Falts, op. cit (Note 1), p. 349.

[21] According to a famous say, “on the Internet, nobody knows you’re a dog”.

[22] See Reed, op. cit. (Note 11), p. 119 ff.

[23] European Commission, “Ensuring Security and Trust in electronic Communication. Towards a European Framework for Digital Signatures and Encryption”, http://www.ispo.cec.be/eif/policy/97503.html

[24] According to the definition of the directive 1999/93/EC “electronic signature means data in electronic form, which are attached to or logically associated with other electronic data and which serve as a method of authentication (Art. 2 lit. 1)”. This term differs from the term “digital signature”, which refers exclusively to the use of asymmetric encryption techniques, whereas the former is more general. See American Bar Association, Digital Signature Guidelines, ABA: Chigaco 1996, p. 9.

[25] Reed, op. cit. p. 169

[26] Most laws introduce legal presumptions concerning electronic signatures, see e.g. Singapore Electronic Transactions Act 1998, s. 18 (2) (a), (b), Utah Digital Signature Act 1996 (Utah Code § 46-3), § 406 (3) (b).

[27] E. Troulinos, Το Προεδρικό Διάταγμα 150/2001 [The Presidential Decree 15/2001], DEE 2001, 1236. I. Linaritis, Η κοινοτική ρύθμιση των ηλεκτρονικών υπογραφών μετά την ενσωμάτωση της οδηγίας 99/93 της Ευρωπαϊκής Ένωσης στο ελληνικό δίκαιο με το ΠΔ 150/2001 [The regulation of electronic signatures after the transposition of EU Directive 99/93 in Greek Law by PD 150/2001], DEE 2002, 262.