Legal Admissibility of Electronic Documents and Messages

The Electronic Signature Law stipulated in Article (13/First) that electronic documents, electronic writing, and electronic contracts possess the same legal admissibility as their paper counterparts if the following conditions are available in them:

1. Retrievability and Preservation

The information contained in the electronic document must be capable of being preserved and stored so that it can be retrieved at any time.

This ensures the existence of a fixed electronic record that can be referred back to when needed without loss or damage.

2. Integrity of Content Against Modification

The ability to retain the electronic document in the form in which it was created, sent, or received, or in any other form that facilitates proving the accuracy of the information contained therein at the time of its creation, sending, or receipt.

This must be such that the content does not accept any modification by addition or deletion.

This condition ensures the integrity of the data and prevents tampering with it after its creation.

3. Identity of the Sender and Time

The information contained in the document must indicate the identity of the person who created, sent, or received the document, with a statement of the date and time of sending and receipt.

This condition achieves the capability to track the source of the electronic message and its temporal destination accurately.

Summary of Admissibility

These three conditions combined aim to ensure the reliability of the electronic document regarding the possibility of preserving it, the integrity of its content, and the identification of its originator and recipient.

By fulfilling these requirements, the electronic document (including email messages) becomes of legal admissibility equal to ordinary paper bonds in evidence.

The law also permitted, in Article 13 (Third), for both the signer (sender of the document) or the addressee to prove the validity of the electronic document by all available legal methods of proof.

This means the possibility of using various evidence (such as testimonies or technical presumptions) to prove the validity of the electronic message when there is a dispute over it.

Based on the foregoing, email signed electronically and satisfying the conditions of the law enjoys the same evidentiary power possessed by an ordinary written bond.

The Law of Evidence No. 107 of 1979 confirmed this principle by stipulating that signed letters shall have the admissibility of ordinary bonds in terms of evidence, a matter which the Electronic Signature Law consecrated regarding modern electronic correspondence.

The Certified Electronic Signature and Its Legal Admissibility

For the electronic message to acquire full admissibility in evidence, it should be signed with an authenticated electronic signature.

Law No. 78 of 2012 defined the electronic signature as: "A personal mark taking the form of letters, numbers, symbols, signs, sounds, or others, having a unique character indicating its attribution to the signer, and being certified by a certification authority."

The intended meaning of the Certification Authority according to the law is the legal person licensed to issue electronic signature certification certificates; that is, the accredited certification authority that issues a digital certificate linking the identity of the signer with their electronic signature data.

Article (4/Second) of the law stipulated that the electronic signature in civil, commercial, and administrative transactions has the same admissibility established for the handwritten signature when the signature is created according to the conditions stipulated in Article (5) of the law.

Conditions for Admissibility (Article 5)

In detail, Article (5) stipulates the following for the electronic signature to enjoy evidentiary admissibility:

1. That the electronic signature is certified by a licensed certification authority in accordance with the provisions of the law (meaning a valid and effective electronic certification certificate has been issued regarding it).

2. That the electronic signature is linked to the person of the signer alone and no one else (the characteristic of linking to the personality of the signature owner).

3. That the electronic medium used in creating the signature is under the control of the signer alone and no one else during the signing process (meaning the signing tool or digital certificate is secured and subject to the possession of the signer only).

4. That any modification or alteration to the electronic signature is detectable by specific procedures and techniques, to ensure the impossibility of forging the signature or changing it without detection.

5. That the signature is created according to the technical procedures determined by the competent authority pursuant to instructions issued by the Minister (Minister of Communications), to ensure adherence to approved technical standards when generating the electronic signature.

Conclusion on Validity

By realizing the above, the "Certified" electronic signature is considered correct and fully binding just like a manual signature.

This means that the electronic document bearing a trusted electronic signature is legally relied upon in evidence as if it were signed by hand.

It is important to point out that the absence of signature certification from a certification authority causes it to lose much of its legal value.

The law requires the existence of a valid electronic certification certificate to consider the electronic signature authenticated.

For this reason, electronic signatures were not accepted as official evidence before Iraqi courts during the years following the issuance of Law 78 of 2012, until the necessary infrastructure for issuing certification certificates was established recently, as we will clarify.