The restitution of the probative trace is the essential purpose of preservation
Restitution must be intelligible and accessible by individuals. Therefore, the written word expressed, even in encrypted form or in the form of computer code, will only be valid as evidence if its informational content can be produced in a readable and understandable way by individuals. The content must be readable and understandable. The intelligibility of the writing implies that it is preserved in such a way that this condition is respected, meaning that the restitution of the writing, in the shorter or longer term, guarantees that the individual will have access to the content of the writing in such a way that it is intelligible and readable for them.
It is important that each person can later access the electronic writing. The subsequent accessibility of the writing also consists in the durability of the writing, its integrity over time.
The principle of preserving the integrity of the document was established without specific preservation methods being provided. The methods fall within the regulatory domain. And so that the writings serve as evidence, it is important that they can be migrated across different media without harming the integrity of the act.
In the future, the act should be able to be tracked, from its original recording to its destruction, under established legal and technical security conditions; this is how “tracked” written evidence will be established.
To illustrate this presentation on traceability, we will take three examples in the context of social networks:
- Although writing on paper media is not directly accessible on social networks, comments and publications increasingly serve as evidence. Indeed, in 2010 the Tribunal aux affaires familiales de Nancy ruled admissible as evidence a printed page from the social network Facebook in a case where the dispute concerned the payment of alimony. The Tribunal considered that the statements on Facebook constituted an admission, and therefore accepted as admissible evidence the copies of Facebook pages showing certain photos.
- In 2010, the Conseil des prud’hommes de Boulogne-Billancourt also ruled as “founded” the dismissal of two of its employees for “incitement to rebellion” due to comments made on the “Wall” of their Facebook pages.
- In 2015, the Cour d’Appel de Versailles ruled admissible as evidence a conversation extracted from the Facebook account of one of the two spouses with third parties, as part of a divorce proceeding.
All these disputes prove to be a real change in terms of lightening the burden of proof for those who want to stop the harmful consequences of the abusive exercise of freedom of expression. However, this admission raises two difficulties: that of the origin of the electronic document and that of obtaining it.
Both in civil and criminal matters, evidence obtained by “a dishonest process (makes) the evidence thus obtained inadmissible in court.” However, the obtaining of evidence is often done without the knowledge of individuals. The question therefore arises as to the fairness of the evidence. Would it not be easier to determine upstream the characteristics of a secured and securable identity?
