SCANNED EVIDENCE UNDER THE LAWS OF THE NETHERLANDS ANTILLES AND ARUBA
Electronic files will not be disregarded as evidence
A Netherlands Antilles or Aruban court may base its decision on facts only. If something is not disputed by the parties it is 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 Amsterdam, the court will assume the correctness thereof, although both parties know that the fight was actually in Rotterdam. 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 base its decision also on circumstances that are generally known and need no proof.
For all electronically retained records it is important to convince the court of their authenticity when presented as evidence. The Netherlands Antilles Ordinance on Electronic Agreements sets out that the electronic signature has the same validity as a “paper” signature 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 refrain from disregarding the microfilmed or scanned evidence.
Karel Frielink
Attorney (Lawyer) / Partner
