The Evidentiary Value of Electronic Documents: A Comparative Study

Abstract

Due to the newness and spread of electronic transactions and documents, it is necessary to develop a legal legislation that governs these electronic transactions and gives them legal protection. Therefore, the Palestinian legislator issued Decree Law No. (15), of 2017 on electronic transactions and referred the issue of verification to Law No. (4), of 2001. Since the issue of verification for these electronic transactions is the most controversial and is considered the most prominent legal problem in this regard, this research aimed to investigate the verification of electronic documents according to the Palestinian Evidence Law, and comparing it with the texts of the Jordanian law.

This research dealt with the concept of electronic documents in terms of their definition, since the Palestinian and Jordanian legislators did not define electronic documents explicitly and directly. It also dealt with the elements of the electronic editor; writing and electronic signature. The researcher also touched on the conditions that must be met by the electronic document in order for it to have an authority in the evidence. These conditions are represented in the ability to keep the information contained in the electronic document, no matter how long the period of time, and that the information be kept in the same form in which it was created, sent and received, and that the information recorded on the document is understandable and readable, and contains the date and time of sending and time of delivery, and indicates the person who wroteit.

It also includes that the electronic document is authenticated by the approved certification authority, such as the Ministry of Communications that the Palestinian legislator specified in the Electronic Transactions Law. In the event that none of these conditions is available in the electronic document, it is not valid in proof according to Palestinian and Jordanian law, since the Palestinian and Jordanian legislators gave the electronic document the same authenticity in the proof that the legislator gave to the customary bond. The provisions that apply to the ordinary bond apply to it. This research also dealt with the second element of the electronic document, which is the electronic signature in terms of its nature, and its definition, as the Palestinian legislator defines it clearly and explicitly. The images of the electronic signature were identified because the electronic signature has several images that differ according to the method of signature and the tool used.

The conditions that must be met by the electronic signature were identified in order for it to have legal authenticity. These conditions include that the signature must be associated with and identify the owner of the electronic document. The signatory must be the only person who controls the signature tool on the electronic document, and the electronic document must also be closely linked to the signature, and the signature must be authenticated by a competent and accredited authority. In the absence of one of the conditions, it loses its force as a bond that has the proof power of a customary bond. The job of the electronic editor was identified, which is similar to the job of the traditional editor, as it determines the identity of the electronic editor's job and is considered the tool that expresses his satisfaction and commitment under what is stated in the electronic document.

The Palestinian and Jordanian legislations acknowledged that the electronic signature is as authoritative in evidence as the signature of traditional customary bonds in proof. In spite of acknowledging this legal validity of the electronic signature, on the ground it is not given the scope of absolute application, legal protection and trust, as was granted to traditional bonds.