24 March 2014
Are emails/faxes considered “original documents” for the purposes of record keeping or as evidence in court or is it essential to provide a traditional certified/attested hard copy of the same?
TL;DR: Yes. Emails etc. are considered original documents provided that they meet a certain legibility and authenticity criteria.
The relevant authority vis-à-vis this query is the Electronic Transactions Ordinance, 2002 (the “ETO”):
1. Section 4 of the ETO provides as follows:
4. Requirement for writing.—The requirement under any law for any document, record, information, communication or transaction to be in written form shall be deemed satisfied where the document, record, information, communication or transaction is in electronic form, if the same is accessible so as to be usable for subsequent reference. (emphasis added)
2. The requirement under the law if that any document (including record, information, communication or transaction) should be in “written form”. The requirement under Section 4 of the ETO for, inter alia, a document or communication to be in “written form” shall be deemed to be satisfied, provided that the same is accessible for any future reference.
3. Section 5, of the ETO, provides the requirement for original form:
5. Requirement for original form.—(1) The requirement under any law for any document, record, information, communication or transaction to be presented or retained in its original form shall be deemed satisfied by presenting or retaining the same if:
(a) there exists a reliable assurance as to the integrity thereof from the time when it was first generated in its final form; and
(b) it is required that the presentation thereof is capable of being displayed in a legible form.
(2) For the purposes of clause (a) of sub-section (1);
(a) the criterion for assessing the integrity of the document, record, information, communication or transaction is whether the same has remained complete and unaltered, apart from the addition of any endorsement or any change which arises in the normal course of communication, storage or display; and
(b) the standard for reliability of the assurance shall be assessed having regard to the purpose for which the document, record, information, communication or transaction was generated and all other relevant circumstances. (emphasis added)
The requirement of the law is that a document should be in its “original form”. Under Section 5 this requirement is deemed to be satisfied if the integrity of such document or communication is assured and if the same is capable of being presented in legible form. The criteria for integrity and legibility is provided in Section 5(2).
4. In view of the provisions of Section 5 of the ETO, a fax/ email shall be considered to be an original document provided that there is reliable assurance from the recipient that the content of such fax/ email has remain unaltered from the time it was generated by the sender. Furthermore, the recipient shall be required to produce the fax/ email in legible form to be able to have the same treated as an original document.
5. The ETO further provides for the criteria required for retention of any electronic document. Section 6 provides as follows:
6. Requirement for retention.—The requirement under any law that certain document, record, information, communication or transaction be retained shall be deemed satisfied by retaining it in electronic form if:
(a) the contents of the document, record, information, communication or transaction remain accessible so as to be usable for subsequent reference;
(b) the contents and form of the document, record, information, communication or transaction are as originally generated, sent or received, or can be demonstrated to represent accurately the contents and form in which it was originally generated, sent or received; and
(c) such document, record, information, communication or transaction, if any, as enables the identification of the origin and destination of document, record, information, communication or transaction and the date and time when it was generated, sent or received, is retained. (emphasis added)
6. In light of Section 6 of the ETO, if a fax/ email is retained by the recipient in a form that such fax/ email: (1) remains accessible so as to be available for subsequent reference; and (2) represents accurately the content and form in which the same was originally generated; (3) while clearly providing the particulars in respect of its origin, destination, date and time, then the criteria laid down in Section 6 of the ETO shall be sufficiently satisfied.
7. The ETO by virtue of Section 29, read with the Schedule attached thereto, has amended the Qanun-e-Shahadat Order, 1984 (law of evidence) (the “Order”), the relevant amended Articles of which are provided/ discussed hereunder:
(a) Certain expressions provided in the Order are to bear the meanings as provided in the ETO, including the expressions “automated”, “electronic”, “electronic document”, “information”, “information system” and “security procedure”.
“security procedure” means a procedure which :
(i) is agreed between parties;
(ii) is implemented in the normal course by a business and which is reasonably secure and reliable ; or
(iii) in relation to a certificate issued by a certification service provider, is specified in its certification practice statement; for establishing the authenticity or integrity, or both, of any electronic document, which may require the use of algorithms or codes, identifying words and numbers, encryption, answer back or acknowledgment procedures, software, hardware or similar security devices.
(b) Article 73 of the Order has been amended by inclusion of the following new explanations:
Explanation 3. A printout or other form of output of an automated information system shall not be denied the status of primary evidence solely for the reason that it was generated, sent, received or stored in electronic form if the automated information system was in working order at all material times and, for the purposes hereof, in the absence of evidence to the contrary, it shall be presumed that the automated information system was in working order at all material times.
Explanation 4. A printout or other form of reproduction of an electronic document, other than a document mentioned in Explanation 3 above, first generated, sent, received or stored in electronic form, shall be treated as primary evidence where a security procedure was applied thereto at the time it was generated, sent, received or stored.
(c) A new Article 78-A has been inserted, in the Order, by virtue of the ETO as follows:
78-A. Proof of electronic signature and electronic document.—If an electronic document is alleged to be signed or to have been generated wholly or in part by any person through the use of an information system, and where such allegation is denied, the application of a security procedure to the signature or the electronic document must be proved.
8. As per the aforementioned relevant amendments to the Order, if a fax/ email is reproduced and presented in court, the same would be deemed to be evidence in primary form if the automated information system used by the recipient for obtaining the output of the fax/ email is in working order or if the same has been subject to a security procedure i.e. (i) has been obtained through a mechanism which has already been agreed between the recipient and its sender; or (ii) has been subject to implementation of a secure and reliable procedure carried out in the normal course of business; or (iii) which in relation to a certificate issued by a certification service provider, is specified in its certification practice statement, for establishing the authenticity or integrity, or both, of any electronic document, which may require the use of algorithms or codes, identifying words and numbers, encryption, answer back or acknowledgement procedures, software, hardware or similar security devices.
9. Furthermore, in the event a sender challenges the authenticity of the fax/ email received by the recipient, then as provided under the new Article 78-A of the Order, the application of any of the security procedures (as provided above) to the relevant fax/ email shall have to be proved by the recipient.
*italics have been used to differentiate the quotations from the rest of the text and to avoid confusion in the numbering. Italic and Underlined form is only to avoid confusion and provide emphasis, respectively.
Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.
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