Dominic Jaar has an interesting article in the droit-inc blog (en français) suggesting that a printed document may have less legal impact than the electronic original, because the printout does not reproduce all the information in the original, notably not the metadata. And these days, pretty well all documents start in electronic form, in a word processing program of some sort. Who has a typewriter any more?
This is a particular issue in Quebec because of the terms of the Act to provide a legal framework for information technologies — Loi concernant le cadre juridique des technologies de l'information, L.R.Q. c. C-1.1. That Act provides that information can have the same legal effect regardless of its medium (the ‘support’). This was originally conceived to promote digitization of printed documents, but as Dominic points out, the logic works in both directions. The Act goes into considerable detail about how the integrity of a document must be maintained in moving from one medium to another, and in how the integrity should be provable (though there is a presumption of integrity, so it does not have to be proved in every case).
It has long struck me that the Quebec Act could be a kind of user’s guide to the Uniform Electronic Commerce Act and its implementing statutes across common-law Canada. Its principles are largely the same, where the subject matter overlaps (the Quebec statute touches on a number of topics that the UECA does not), but the Quebec Act goes into much more detail. It shows (in my view) that a technology-neutral statute does not have to be minimalist!
But here: is the additional detail problematic, in raising questions that should not be raised? Or does the Quebec Act (and Dominic’s observation about it) signal an important element of documentary integrity that we have been overlooking and that we should not ignore?
It is certainly well known that requests for electronic discovery generally specify that documents are to be produced in their native format, in order to capture the metadata. Is this a sign of the direction that legal analysis will go in other areas as well, that having a paper document will simply not be good enough for legal purposes? Will people have to keep the electronic original of anything that is created, even if only to be used in printed form?
I believe that the electronic original of anything that is created, even if only to be used in printed form should be retained and presented upon request. The integrity of the document should be provable upon request even if presumed. I think the Quebec Act is right to raise the integrety question.