It is increasingly the case that legal disputes are grounded in private email correspondence between the parties.
This type of private correspondence creates serious problems in court cases since, in many instances, it just consists of printouts of digital communication which, once the case has started, can easily be contested by the party whose case it harms because it lacks an authenticated signature, verifiable date, or digital certification of the email’s contents.
On 23 July 2020, however, the Spanish Supreme Court ruled that emails can be regarded as a wholly valid and probative form of evidence, so that henceforth they may be presented as private documentary evidence in any legal proceeding as long as, in my opinion, they possess the following requisite guarantees of authenticity:
1. Identity of the author – it is only necessary to know the IP address from which the email was sent so that it can be compared with the information stored on the Whois database. In this way the physical address, telephone number and email address of those accounts behind a given IP address.
2. Identity of the recipient – Normally this can be ascertained from the email heading by which information can be identified about both sender and recipient, the intermediate servers through which the email passes from sender to recipient, the email provider used to send the
email, the date the email was sent and received.
3. The exact date – the timestamp is a sequence of characters which denote the time and date (or one of them) when a particular event occurred.
4. The digital certificate – this allows a document to be given an electronic signature. The recipient of a document signed in this manner can be assured that the document is an original, that it has not been tampered with, and that its author cannot deny its authenticity.
5. A certified email is an electronic communication that is self-certifying, i.e. it provides third parties with the security that the said communication has actually occurred. In this type of communication, in addition to sender and recipient, a third party is involved, independent and disinterested in the communication (the confidential services provider or Trusted Third Party) and
who has the function of certifying that the communication took place – when, from where, when
sent and received, etc.
It is clear that the judicial system has to adapt to technological advances, and emails and WhatsApp screenshots are commonly presented in court, so it is therefore necessary to establish some clear criteria about how these are presented in a judicial process in order to be fully guaranteed and considered as authentic documentary evidence.
For this reason, the Supreme Court recognized that it was time to move forwards and recognize emails as valid evidence, in this way broadening the interpretation of “documentary evidence”. Before such evidence is treated as valid, however, consideration must be given, as I mentioned above, to whether its validity has been contested, whether it has been authenticated, and if so, whether the submitted electronic document is sufficient to satisfy the claims made about it as evidence without need for other probative sources or complicated legal argument.