Blockchain is more and more utilized to register official documents, contracts, copyrighted work…, and is frequently presented as a reliable solution to authenticate, archive and timestamp such documents.
Is blockchain a legally valid archiving solution?
Archiving may be technically defined as “any mid or long-term actions, tools and methods implemented to safeguard information in order to exploit it later on”.
Proof of existence
The practice of archiving on the Blockchain is recording proof of the existence of rights via a time stamping system. The document itself is not located on the Blockchain. Blocks only record transactions without forming the transactions themselves. The transaction does not occur via the Blockchain.
Proof of existence is just taking the hash and storing it in the Blockchain. Once that transaction is confirmed, it can be referenced to prove that a particular document exists.
A digital fingerprint generated from a hash also gives the option to access the entire document by linking it with the cloud.
The hash function (a hash) generates a digital fingerprint, a string of characters that uniquely identifies one computer file. A computer file will thus only have a single digital fingerprint. As a result, the document will be tamper-proof since two files that differ even by a single character will have completely different digital fingerprints and any changes will be reflected in a different digital fingerprint.
The eIDAS Regulation, in force throughout the European Union since 1 July 2016 is the first legal source to refer to. The eIDAS Regulation provides for common rules for the exchange and secure electronic interactions between the Member States, Citizens, Public Authorities and Businesses to improve user confidence in transactions concluded electronically within the European Union.
In particular, the eIDAS regulation provides that: “An electronic document shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in electronic form.” – Article 46 – but also that “An electronic time stamp shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements of the qualified electronic time stamp. ” -Article 41.1 -.
A qualified trust service provider means a trust service provider who is granted the qualified status by the supervisory body and who provides one or more qualified trust services that benefit from a stronger presumption of accuracy compared with the presumption of other trust services provided by trust service providers.
Law of evidence according to the Civil Code
The French general contract law has been substantially reformed in 2016. This reform of the contract law and the general and evidence rules on obligations introduced by the ordinance of February 10th, 2016 contains an important article for a future use of the Blockchain as an authenticating register.
The Article 1379 on the “Reliable digital copy” states that a digital copy and an original one have the same probative force. But, the reliability is left to the discretion of the judge. The same article provides for a presumption of reliability of the enforceable or authentic copy of an authenticated deed. This same presumption also applies to any digital copy resulting from any unchanged reproduction (proper form and content). However, the integrity of the copy over time should be ensured by a process according to conditions laid down by a decree of the “Conseil d’Etat”.
The Decree No. 2016-1673 of 5 December 2016 made under Article 1379 of the Civil Code relies on the eIDAS Regulation to ensure the reliability of copies. It is intended to apply to companies and organizations that use electronic archiving. One should imagine that its implementation primarily concerns the Blockchain.
In accordance with the Decree and in order to benefit from the presumption of reliability, the electronic copy must be made using two different methods:
- Either the reproduction process leads to an irreversible modification of the copy support and then refers to the application of the AFNOR Z 42013 standard for “faithful and durable” copies, this specific case seems applicable to a blockchain;
- Or the electronic reproduction method meets the standards of incorruptibility and faithfulness to the original.
In particular, in order to ensure the integrity of the copy, users must have a fingerprint to ensure that “any subsequent changes to the copy to which it is attached are detectable” (Article 3). The integrity of the copy will thus be presumed when a time stamp, a stamp or a qualified electronic signature will be used within the meaning of the eIDAS regulation.
Archiving via blockchain would be admissible, but would not benefit from a presumption of integrity.
Electronic archiving: state of the Art
The French technical standard NF Z 42-013, developed by the Association of Standards –AFNOR-, as well as the international standard ISO 14641-1 (which incorporates the AFNOR standard), are the state of the art in the electronic archiving.
Even if the standard NF Z 42-013 meets the requirements of fidelity and durability exposed above, it does not have the force of law. However, the “Court of Cassation” considered that existing standards represent the state of the art. The state of the art in scientific fields, understood in a broad sense, refers to the best knowledge available on a subject at any given time. In such a case, it is the best current knowledge about electronic archiving.
Consistent with national legislation, electronic archiving provides guarantees and helps to convince the judge in the case of a dispute about the probative value of a document from an archiving system. The probative value means that this document is sufficiently useful for the judge to recognize and to accept it as a proof.
Work has begun at AFNOR and at the International Organization for Standardization ISO to standardize blockchain technology.
Agreement in relation to proof
In the above-mentioned context, it would be prudent to use additional contractual mechanisms, such as agreement in relation to proof, a contract between companies or between companies and individuals, the purpose of which is to define the forms of proof acceptable between the parties, the burden of proof and the methods of dispute settlement.
It ensures the evidential validity of data generated by an electronic archiving system.
The parties may refer, under these conventions, to certain texts including the aforementioned NF Z 42-013 AFNOR standard, meeting the requirements of loyalty and sustainability. However, it does not have the force of law. The parties may also decide that files will be electronically archived on other supports (for instance a blockchain). It does not have either the force of law.
Their validity, repeatedly acknowledged by Court, is enshrined in Article 1316-2 of the Civil Code (new Article 1368).