Did You Really Send It? Email Evidence in Litigation and Arbitration in Argentina.

• Author: Allende, Lisandro A.

EVERY second an estimated 2.4 million emails are sent. The number of email users worldwide is 3.7 billion, and the amount of emails sent per day is around 269 billion. (1)

The practical advantages of these technologies are obvious: they are time-saving, cost-effective and reliable. Most of our communications, whether professional or personal, are not held in paper or physical support but in an intangible record.

Since the application of every new technology comes with inevitable controversies, it has been necessary to legislate on these innovations in order to prevent conflicts and provide adequate answers to those in need of justice.

Because of its timeless quality and general, ample wording, the 19th Century Argentine Civil and Commercial Codes have been used to rule over a wide range of matters involving postal or electronic mails, with almost no legal improvements since their enactments (1862 and 1869, respectively). But in recent times, with the massive popularity of new forms of communications, it has become necessary to pass a law that includes not only facsimile or electronic mails, but also all kind of new technologies widely used.

In response to those needs, the newly unified Civil and Commercial Code (2) ("CCC") regulates all types of electronic communications and applies to all kind of information in the form of a data message, in accordance with the first article of the UNCITRAL Model Law on Electronic Commerce. (3)

1. CCC provisions

   The CCC provides practical solutions involving the admissibility of evidence based on emails in both arbitration and litigation procedures.

   It is worth to point out that in matters concerning signature and its evidential value, the CCC follows the UNCITRAL Model Law on Electronic Commerce and the Civil Code of Quebec. (4)

   UNCITRAL Model Law Electronic Commerce has influenced legislation in more than thirty countries, including the CCC, as set out in its preface. (5) Although not expressly stated, the CCC also closely follows the United Nations Convention on the Use of Electronic Communications in International Contracts. (6)

   As noted above, the CCC takes into account all methods of written communications. Hence, emails are a type of evidence that can be admitted in arbitration and in court in the same way as any other methods of documentary evidence. However, the letter of the law establishes several limitations regarding confidentiality, as a way of protecting privacy.

   A positive aspect of the Argentine legal system is that it allows all types of evidence, even if it is not expressly permitted by law. These principles are referred to as "freedom of proof." Any written communication, regardless of its form of creation or transmission, is admissible as evidence as long as it has been lawfully acquired and is not confidential.

   For the purposes of this article, evidence is referred to as information intended to prove a fact from which a conclusion may logically be drawn as to the existence of that fact. Evidence is a crucial tool for the judiciary as it is used to determine matters of controversy. It may consist of proof by testimony of witnesses, writings or records. In adjudicating a matter, judges prefer direct evidence like documents or witness assertions; that is why in many cases intangible electronic evidence is challenged on its admissibility.

   Legal limitations on admissibility are not based on mistrust of the technology, but are justified by the constitutional right to privacy. The law requires that the use of confidential emails as evidence in arbitration or in litigation be authorized by the addressee, following the maxim "nemo tenetur armare adversarium contra se," meaning that nobody is bound to arm his adversary against himself.

   Third parties are not allowed to use emails or any form of correspondence without the consent of the addressee. When this type of evidence is provided by someone who neither is the originator nor the addressee, magistrates are required to take into account how this person gained access to the mails and reject those obtained in an illegal way.

   This legislation protects confidentiality in accordance with the Argentine Federal Constitution and Criminal Code, which consider it contrary to the law to intercept or access electronic communications, mails, phone calls or computer data and that prohibit the publication of illegally obtained data.

   Today, most business communications are conducted via electronic device. In order to prevent unauthorized use of private emails, it is advisable to use legal notices asserting its confidential status or stating that the text is protected by the attorney-client privilege. The author of a letter, email or any kind of electronic communication has the prerogative to decide whether the content is...