INFORMATION TECHNOLOGY
Supreme Court of Cassation: an ordinary e-mail message cannot be excluded from evidentiary relevance merely because it is not digitally signed.
The Court of Cassation, section III Civil, in its judgment no. 14046 of 21 May 2024, dealt with the case of a haulier who had entered into an insurance contract through a broker against the risk of theft of the goods transported (a load of medicines). Theft then actually occurred with liability charged to the carrier. At the shipper's request to be indemnified for the damage, the carrier asked to be held harmless by the insurance company, which, however, denied the indemnity on the ground that the insurance contract excluded from coverage the damage resulting from the theft of medicines.
In the course of the proceedings, among the various objections, the haulier instead objected to the company's extension of the coverage to the risk of theft of medicines due to an exchange of e-mails between the broker (also sued) and an official of the company itself. At first instance, the Court of First Instance had upheld the claim against the company, arguing precisely on the basis of the exchange of e-mails. In the second instance, the Court of Appeal rejected the claim against the company on the grounds that the exchange of e-mails could not integrate the written form required by Article 1888 of the Civil Code since ‘it was an exchange of simple, ordinary e-mails and not an exchange by means of certified electronic mail’ and that the ordinary e-mail ‘has the value of a photocopy, rectius of a mechanical reproduction, and is full proof, pursuant to Article 2712 of the Civil Code, only if not contested’.
For the Supreme Court, on the other hand, the e-mail message is a computer document capable of satisfying the requirement of written form and freely assessable in court, taking into account its objective characteristics of quality, security, integrity and immodifiability. It follows that the judge cannot simply deny that an e-mail message with a ‘simple’ electronic signature satisfies the requirement of written form, but must first examine and assess its ‘objective characteristics’ which, therefore, ‘must be deduced from the corpus mechanicum available to the judge: and therefore - in particular - from the format of the file in which the e-mail message was saved; from its properties; from the syntax adopted; from the graphics’.
In summary, therefore, for the Supreme Court:
In the course of the proceedings, among the various objections, the haulier instead objected to the company's extension of the coverage to the risk of theft of medicines due to an exchange of e-mails between the broker (also sued) and an official of the company itself. At first instance, the Court of First Instance had upheld the claim against the company, arguing precisely on the basis of the exchange of e-mails. In the second instance, the Court of Appeal rejected the claim against the company on the grounds that the exchange of e-mails could not integrate the written form required by Article 1888 of the Civil Code since ‘it was an exchange of simple, ordinary e-mails and not an exchange by means of certified electronic mail’ and that the ordinary e-mail ‘has the value of a photocopy, rectius of a mechanical reproduction, and is full proof, pursuant to Article 2712 of the Civil Code, only if not contested’.
For the Supreme Court, on the other hand, the e-mail message is a computer document capable of satisfying the requirement of written form and freely assessable in court, taking into account its objective characteristics of quality, security, integrity and immodifiability. It follows that the judge cannot simply deny that an e-mail message with a ‘simple’ electronic signature satisfies the requirement of written form, but must first examine and assess its ‘objective characteristics’ which, therefore, ‘must be deduced from the corpus mechanicum available to the judge: and therefore - in particular - from the format of the file in which the e-mail message was saved; from its properties; from the syntax adopted; from the graphics’.
In summary, therefore, for the Supreme Court:
- the e-mail message signed with a ‘simple’ signature is a computer document within the meaning of Article 2712 of the Civil Code
- if its provenance or content are not disputed, it forms full evidence of the facts and things represented;
- if its provenance or content is disputed, the judge may not exclude that document from the list of usable evidence but must assess it in conjunction with all the other available elements and taking into account its intrinsic characteristics of security, integrity and immodifiability.
