Le droit de la preuve face aux techniques numériques
Evidence Law refers to rules regulating the evidence in the judicial system, i.e.
the process through which, the judge recognizes the truthfulness of one’s allegations.
History shows that the corpus of law has not significantly changed throughout the years, but a variety of factors — specifically technical progress — have influenced those rules. Therefore, evidence rules have been adjusted and a number of modifications have been adopted since the 70’s in response to the development of digital techniques in our society. Although limited to private law cases, the present study intends to analyze these evolutions.
The first part of the study is dedicated to rules that regulate the proof of a legal act. Parliament’s intervention since the year 2000, in an attempt to equate a digital document to a written proof, has been more of a subversion than a real adaptation.
Up until the 90’s, these rules, commonly known as the “système de preuve légale” (legal evidence system), were meant as a legal frame to guide the judge in his ruling when it came to the existence or the content of a legal act. Under the pressure of a fast-growing digitalized world, the actual legal system is not what it used to be: judges are left to assess all evidence according to their own conviction or their own sense of equity. Legal certainty and congestion in courts are therefore no longer able to substantiate the rules written in the Civil code. The whole system might need to be changed.The second part of the study sets out to analyze the rules traditionally regulating the proof of a legal fact, which are frequently referred to as the “système de preuve morale” (moral conviction system).
The globalization of the digital techniques has had two main impacts.
The first one is the need to consolidate the rule of lawfulness of evidence laid down in the Code of civil procedure.
The Data Protection Act 1978 is one of the most iconic legislations in this aspect. The second impact stems from case studies, which show the need to balance the judges’ power to assess pieces of evidence with a duty to provide statement of reasons, as dictated by the Code of civil procedure.
In summary, by showing how the digitalization has led to a fundamental mutation of the Evidence Law, this study is a contribution to the analysis of the relations between the judicial system and the technical progress or, more generally, between the facts and the rule of Law.
Le droit de la preuve face aux techniques numériques
