If your company goes to court with a disk full of documents, will the court accept them? Nobody can know for sure, but here is a checklist to ensure your documents are taken seriously.
The much touted Electronic Communications and Transactions (ECT) Act is a great piece of enabling legislation. It aims to facilitate regular electronic communications and transactions, help develop a national e-strategy, promote universal access to electronic communications and transactions, get SMMEs to use electronic transactions, prevent system information abuse, encourage e-government services use and provide for other e-matters.
In the real world it has already encouraged and led many companies to look to technology for improving their business processes and moving into the e-world. That is all well and good and to be applauded, and companies should be encouraged to look to the many benefits inherent in the legislation. But there are a couple of questions that remain unanswered.
One of the most commonly asked is about the legal admissibility of electronic evidence. For example, if we scan paper documents and then reproduce them later, will these be acceptable to a court? South Africa is not alone in asking these questions.
In order to provide some answers and a framework within which companies can operate, the international organisation for standardisation (ISO) developed ISO 15801, which has been adopted in South Africa as SANS 15801.
There are six elements that must be considered if a company wants to be confident that its records will meet the ECT act requirements of authenticity, reliability, and originality. While the Act implies what companies should be doing, SANS 15801 provides the details of what best-practice processes must be put in place. However, the challenge remains that there is no legal precedent. Companies are still unsure what the courts reaction will be every time they produce digital evidence.
And that means that there is no way of knowing whether or not the court will actually accept a reproduction of a digital document. In principle the court must consider the document's evidential weight and how much trust it has in the document's authenticity. Courts will factor in that companies use best practices such as SANS 15801. While it cannot cater for courts' interpretations, it is as close to bulletproof as can be provided anywhere in the world.
But while the ECT Act says that there can be no distinction between paper and electronic documents, that needs to be considered in conjunction with the fact that courts will examine supporting imaged document management processes to ensure that the documents could not have been tampered with.
Companies face a problem when two even slightly different documents come up against each other, one being a copy of a digital image and the other the original paper document. They want to ensure that their processes are so good and their electronic imaged document authenticity so watertight that the court has no choice but to accept their document.
The factors SANS 15801 takes into account:
* Policy - companies must have well designed and implemented policies.
* Duty of care - a principle does not only apply to electronic documents but permeates the organisation in how people do their jobs, how authority is delegated, and separation of responsibilities to reduce collusion and the potential for fraud.
* Procedures - must cover all aspects of imaging from the time documents arrive at the organisation, are prepared, scanned, indexed, stored, retrieved and reproduced on some output device such as a screen or printer.
* Enabling technology - such as image enhancement, character recognition, and digital signature technology.
* Audit trail.
* Documented processes - all of these must be properly documented and detailed in procedure manuals and maintenance schedules.
If companies adhere to these practices and implement SANS 15801, then going to court with a support base of electronic documents will not be the uncertain event that it currently is.
Paul Mullon, information governance executive at Metrofile