SCANNED EVIDENCE UNDER THE LAWS OF THE DUTCH CARIBBEAN
Electronic files will not be disregarded as evidence
A Netherlands Antilles or Aruban court may only base its decision on facts. An alleged fact that is not disputed by the parties is considered to be such a fact, even if it does not correspond with reality. For example, if both parties state that they were involved in a fight in Curacao, the court will assume the correctness thereof, although both parties know that the fight was actually in Bonaire. Furthermore, facts can be proven in the course of the proceedings, e.g., by showing the court an official extract of a notarial deed. The court may also base its decision on circumstances that are generally known and need no proof.
It is important to convince the court of the authenticity of all electronically retained records when presented as evidence. The Netherlands Antilles Ordinance on Electronic Agreements sets out that an electronic signature has the same validity as a signature on paper and can be substantiated by means of digital certificates. The explanatory memorandum suggests further measures to enhance credibility such as the use of Trusted Third Parties (TTP’s) who keep documents as an independent third party, encryption, and other digital means to establish the authenticity of the signature and thus the identity of the parties and the contents of the message.
With respect to electronic files a party should be able to provide the court with information on its archiving and storage policies: a court might be interested to know how a company made sure that the information was correctly reproduced. I feel that where a party is able to present a record of compliance with such archiving and storage policies, assuming that these policies are acceptable to the court, a court will not easily be inclined to disregard the microfilmed or scanned evidence.
Karel Frielink
Attorney (Lawyer) / Partner
(10 August 2010)
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