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Understanding the legal value of your electronic documents and how to profit from them

June 11 2018

A paperless work environment helps to save time, money and space. As society adopts digital technologies, electronic communications are increasingly becoming the standard in business. But do digital documents have the same legal value as paper documents?

What the law says

The UN adopted a law on electronic commerce in 1996 and another on electronic signatures in 2001. These laws have served as the basis for legislation on electronic commerce in many countries worldwide.

In Canada, laws have been adopted in most provinces, and the power to regulate electronic activities is shared between the federal and provincial governments. It is rather difficult to identify the level of government concerned with the different types of disputes – but one thing is certain: federal and provincial laws on the management of electronic documents are relatively uniform in their treatment.

Except in Quebec, provincial legislation on electronic commerce is principally based on the federal government’s Uniform Electronic Commerce Act. In Ontario, the reference is the Electronic Commerce Act, 2000. In Quebec, the Act to Establish a Legal Framework for Information Technology is the legislative reference governing technology-based documents. These laws specify the rules to be followed in preserving the legal value of electronic documents. The most common criterion is: integrity. To affirm the legal value of an electronic document, you must be able to demonstrate that it is complete and has not been altered in any way.

Clearing up legal ambiguity

The Fondation du Barreau du Québec has prepared a comprehensive guide that is available on its website. Here is some key information contained in the guide:

  • Businesses must ensure technology-based documents are managed in a secure manner throughout the four stages of their life cycle: transfer, retention, consultation and transmission.
  • For a document transmitted electronically to have the same validity as a received document, businesses need to ensure the integrity of both documents and to put on record how this is being achieved.
  • A technology-based document may not be refused by a judge merely because it is electronic. It may thus constitute an element of proof that is admissible in the same way as a paper document.
  • The more diligently a document has been managed, the more likely a judge is to consider it as admissible and of evidentiary value.
  • A technology-based document may be an “original” so long as the criteria normally applied to a “paper original” (integrity, uniqueness, etc.) have been met.
  • A contract may be verbal, on paper or electronic, provided the offer is accepted. A contract may therefore be entered into by the exchange of emails or by filling out a form on the Internet, for example.
  • The definition of a signature is not related to the medium of paper; an electronic signature can therefore be legally recognized.

In summary, the choice of a specific medium or technology does not impact the legal value of a document or a signature. It depends on the integrity of the document, not on the technology or medium used.

3 good practices to adopt

Apart from legislation, it is important to know good practices in electronic document management (EDM). Here are some of them:

  1. Before destroying paper copies, make sure that every page of the document has been properly digitized and that the entire text, including images and handwritten notes, is visible.
  2. Regardless of the medium used to digitally archive your documents, make sure you also keep the equipment and software needed to read them.
  3. When destroying your digital documents, ensure you respect the confidentiality of sensitive data they may contain. Once they have been destroyed, it should be impossible to reconstitute them.

The art of using the right tools

Digitizing a document and saving it on your computer’s hard drive is not enough to make it legally valid. Decisions surrounding technologies to be used for managing your documents should be based on reliability imperatives. Use tools that can ensure the confidentiality, integrity and availability of content at every stage of your documents’ life cycle. By taking the time to make the right technology choices, you are ensuring the legal and evidentiary value of your documents, while preserving their security in the event of a power outage or computer hack.

Whatever the size of your business, technological solutions adapted to your needs are available to ensure the integrity of your digital documents, and therefore their legal value. If you are not familiar with EDM, ask our specialists to guide you through solutions that will be reliable and adapted to your environment.

CONTACT US FOR SECURE, CUSTOMIZED DIGITAL SOLUTIONS!

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