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Contracts signed remotely, electronic invoices, documents sent by email or via a data room: today, the majority of professional exchanges rely on digital files. But this transformation poses a key question: how do you prove that a digital document is authentic and has not been falsified? Unlike paper, a digital document can be modified very easily, sometimes without leaving visible traces. In commercial disputes, fraud investigations or criminal proceedings, digital evidence is becoming a central issue. Between legal requirements and technological solutions, organizations must now learn to maintain the integrity of their documents throughout their life cycle. We'll tell you more.
Why has digital evidence become a critical issue?
A few years ago, the paper document had physical characteristics: ink, support, aging, handwritten signature. Even imperfect, these properties allowed the intervention of forgery expertise.
Digital technology is completely changing the game.
A PDF or Word document is just a suite of computer information. A user with the right tools can modify content, recreate metadata, or export a new version that is almost identical.
In a context of documentary fraud, these manipulations have become particularly common:
- modification of a contract after signature
- falsification of invoices or receipts
- alteration of documents transmitted in a data room
- editing digital images or photos
These situations pose a major legal difficulty: how to demonstrate that a digital document is authentic? The answer is based on a fundamental principle: the integrity of the evidence.
Digital evidence in French and European law
The law now fully recognizes the evidentiary value of digital documents, provided that their integrity can be demonstrated.
In France, theArticle 1366 of the Civil Code provides that:
Electronic writing has the same evidentiary value as writing on paper, provided that the person from whom it comes from can be duly identified and that it is drawn up and kept in conditions such as to guarantee its integrity.
To guarantee digital proof under French law, two elements are therefore essential:
1- the identification of the author
2- the integrity of the document
The different levels of reliability of electronic evidence
In practice, digital evidence does not all have the same level of technical reliability. There are generally three categories:
1- Electronic evidence with a high level of guarantee
These include qualified electronic signatures, qualified time stamps, or certain certified recording systems. These devices generally benefit from a strong presumption of authenticity.
2- Electronic evidence with an intermediate level of authentication
For example, electronically signed documents, emails whose origin can be verified, or files accompanied by usable metadata. Their authenticity is presumed but can be contested.
3- Uncertified electronic evidence
These are screenshots, unauthenticated instant messages, or documents whose origin is not technically secure.
These elements can be produced in court, but their probative value depends largely on the judge's assessment.
But how then how to guarantee the integrity of a digital document in an increasingly digitized world?
What tools should be used to preserve digital evidence?
Preserving digital evidence is more than just keeping a file on a server. The aim is to put in place a system guaranteeing that the document has not been modified since its creation.
Here are the main tools that are in use today.
1. The electronic signature
The electronic signature makes it possible to identify the signatory and to ensure that the document has not been modified after signing.
Qualified signatures in accordance with the eIDAS regulation offer the highest level of security in Europe.
Any modification of the document after signature automatically invalidates it.
However, this solution does not protect against all situations such as the modification of the document before signing, the use of an erroneous version or the alteration of a document sent without a signature.
Did you know that?
The eIDAS regulation (electronic Identification, Authentication and Trust Services) is a European framework that frames electronic identification and trust services, such as electronic signatures, timestampings or digital certificates. It ensures that these mechanisms have the same legal value in all Member States of the European Union and that they comply with the requirements set out in the regulation.
2. Electronic timestamp
Timestamp consists in associating a certain date to a digital document. This mechanism makes it possible to prove that a document existed at a given time in a specific state.
Qualified Timestamp Authorities (TSAs) provide legally recognized evidence. They can be useful for:
- prove the existence of a contract on a given date
- attest to the creation of a document
- demonstrate that a file has not been modified for some time
3. Cryptographic hashing
Cryptographic hashing is a mathematical method that turns a document into a unique fingerprint. Like the fingerprint of a human being, the digital fingerprint of a document is unique.
In addition, it is extremely sensitive to the slightest modification: if a single character in the document changes, the imprint will be totally different.
The advantage of this technology is to easily check if a document has been modified.
Use the digital fingerprint to detect forgeries
Beyond the certification of a document, thedigital footprint can also be used to analyze the authenticity of an existing file.
Each digital document has a specific technical structure: metadata, compression algorithms, software signature of the software used to create it or even the internal organization of the file.
These elements constitute a true digital imprint of the document. This is in particular the approach used by Finovox, whose technology analyzes the digital footprint of documents in order to automatically identify manipulations and inconsistencies in the files. This makes it possible to check whether a document:
- has already been analyzed before
- was reported as fraudulent in a completely different context
Digital photo: legal proof?
Digital images and photos are playing an increasing role in legal proceedings. However, their evidentiary value depends on several factors.
A digital photo can be legal proof, but it must meet certain conditions:
- Authenticity of the file
- no change
- identifiable shooting context
- preservation of metadata
In some cases, the courts also ask for additional elements such as testimony, bailiff's reports or computer expertise for example.
With the progress of artificial intelligence and image manipulation tools, the reliability of visual evidence has become a central issue.
Digital evidence in the criminal field
In the criminal field, digital evidence is playing an increasingly important role.
Recent case law confirms an evolution in the assessment of digital evidence, especially in certain disputes such as the insurance law. While some electronic evidence was previously easily discarded by the courts, judges now tend to examine it on a case-by-case basis.
In addition, investigators now use a wide range of sources: computer files, digital conversations, images and videos, browsing histories or even possible data from smartphones. Courts are therefore attaching increasing importance to the technical reliability of the documents produced.
Want to learn more about the subject? Listen to our podcast episode with Emeric Desonix, lawyer and national anti-fraud specialist.
How do you detect forgeries in digital documents?
Businesses and law firms exposed to document fraud must now be able to verify the authenticity of the files they receive. That's what we call internal control. In particular, documentary analysis technologies make it possible to identify:
- invisible edits in a PDF
- metadata inconsistencies
- manipulations carried out with editing software
- anomalies in the file structure
Some specialized solutions, such as Finovox, automatically analyze digital documents in order to identify these manipulations and detect documentary falsifications. Your digital evidence has integrity and you can be sure of it!
Do you want to discover the solution?
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