Authenticating Electronic Mail Messages—Some Evidential Problems
| Date | 01 September 1989 |
| Published date | 01 September 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02620.x |
| Author | Chris Reed |
AUTHENTICATING ELECTRONIC MAIL
MESSAGES-SOME EVIDENTIAL PROBLEMS
THE
concept
of
the “paperless office” is an attractive one, and is
theoretically achievable using currently available computer techno-
logy. Most business documents are created with word processing pro-
grams on a computer
of
some sort, and most modern computer
systems are able to transmit these documents to another computer
through a public telecommunications network. The document, when
received, does not need to be printed out but can be stored on disk
and retrieved as and when necessary. Apart from the increased
efficiency in storage and retrieval that is made possible by this
method
of
communication, there are further advantages such as the
ability to negotiate the contents of the document by amending and re-
transmitting it without the need to re-type it from scratch each time.’
In spite
of
this, the volume
of
paper sent from one enterprise to
another is larger than ever. One reason is,
of
course, that the techno-
logy is new and has not yet been fully accepted. A further reason, and
one that acts
as
a powerful brake on more extensive use
of
electronic
transmission
of
documents, is the problem
of
authenticating the
sender’s identity and the contents
of
the document where there
is
a
dispute.
Goode and Bergensten point out that not all electronic messages
raise legal difficulties.2 Authentication problems arise only where the
communication creates or evidences some right,3 or where it operates
to transfer ownership or control
of
property or some contractual right
over that property. Typical examples might be contracts for the pur-
chase of goods, leases, or international trade documents. The negoti-
ation
of
these documents could well be facilitated by using electronic
mail to transmit the various versions. Once the contents are agreed,
the contract would be formed by one party transmitting a copy to the
other electronically, including a message that he agrees to the terms,
and the recipient replying similarly that he
too
agrees. However,
unless the two messages can be authenticated in their electronic form
the parties will still need to exchange signed physical documents to
ensure that the agreement can be produced in court if necessary.
Rowbotham has suggested that the parties might provide by contract
I
This not
only
saves secretarial time, but
also
the time
of
the negotiator which
would otherwise be spent in proof reading the unamended parts.
*
R.
Goode and
E.
Bergensten, “Legal Questions and Problems to be overcome” in
Thomson and Whcble (eds.)
Trading
with
E.D.I.
the
Legal
Issues
(London:
1989)
p.
127.
e.g.
where
it
creates
a
contract
or
amounts
to
a
potentially actionable represen-
tation.
649
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