In December 2005, the Internet Law Forum (a French organization created in 2000 by the Prime Minister, whose mission is to reflect on the legal questions raised by the Internet) published on its website a list of recommendations relating to the conservation and archiving of electronic documents (accessible at the following link : ).
- The purpose of these recommendations
The legitimacy of electronic documents has become, since the laws of March 13 2000 and of June 21 2004 , an important concern for businesses.
Conservation and archiving play a fundamental role in the probative value of an electronic document. In fact, Article 1316-1 of the Civil Code provides that “a document in electronic form is admissible as evidence in the same manner as a paper-based document, provided that the person from whom it proceeds can be duly identified and that it be established and stored in conditions calculated to secure its integrity”.
In the absence of a general regulation the conservation of such electronic documents (with the exception of a few specific texts relating to authentic electronic documents or to online billing), the Internet Law Forum formed a committee whose mission was to reflect on this subject in order to “come out with practical and legally acceptable solutions to guide the entirety of the participants and to inspire confidence within this field.”
- How to guarantee the integrity of an electronic writing?
According to this organization, three conditions must be cumulatively fulfilled:
- the document must be readable, that is, that we must have “the possibility to access, at the moment of the document’s recovery, all of the information that it contains.”
- the content information of the document must be stable; consequently, it must be able to be shown that the information conveyed by the document has remained identical since its origin, and that nothing has been omitted or added over the course of the process of conservation (this stability must apply to the entirety of the information contained, including the format of the document).
- all actions taken upon the document must be able to be traced; it must therefore be possible to present and verify the entirety of the actions taken on the document at the time of the conservation procedure.
- Good practices to be implemented throughout the process of conservation
During the first step, called the “transfer”, defined as “the entirety of the operations which allow the transfer of a document from the environment of its creation or its reception to its conservation environment”, the Internet Law Forum thus suggests that it is necessary:
- to identify the party that is transferring the document and to verify, if necessary, its capacity;
- to verify that the document has not been altered at the time of its transmission;
- to control the structure of the document and to verify its conformity with the rules in effect at the time of its conservation.
Moreover, they suggest at this point the utility of the installation of a time stamping system, in order to determine the chronology of any actions taken upon a document.
At the time of the second step, that is, the document saving phase, it is essential to classify the new documents in order to permit the verification of the elements of traceability and the stability of the informational content. According to the Internet Law Forum, it is up to the person in charge of conservation to carry out a test to ensure that these measures have been observed, and, in the case of a satisfactory result, to notify the person in charge of the document’s conservation.
During the third step, consisting of the management of the conserved document, they suggest the setting-up of tests for the readability of documents, regular verifications of coherence between the frame of reference for the information system and the storage of documents, the operations of regeneration, of migration (and their control), and of suppression.
Finally, the Internet Law Forum anticipates that the final step, which is the recovery of the archived documents, must include tests of the capacity of the person requesting the recovery, the external procedures of restitution, the selection of the document, the transcription of the document, and the acknowledgement of delivery by the requesting party upon receipt of the document.
In order to be in a position to follow this good practice, the Internet Law Forum ultimately reminds its followers of the necessity, in the case of archival by a third party, to include the practices in a contract binding the parties.
In the case of the conservation undertaken by the business itself, the Internet Law Forum recommends the establishment of an internal chart describing the different steps to follow for the correct conservation of the document, as well as the installation of an internal quality control procedure.
These recommendations are not legally binding ; nonetheless, these guidelines which allow businesses to understand in a clearer way the technical constraints which will apply to them if they wish to assure a satisfactory level of management and of conservation of their electronic documents.