In the majority of civil litigations, e-mails represent fundamental evidence that parties may produce to prove their respective claims. After all, communication nowadays are mostly conducted in digital form, and the traditional exchange of written letters is becoming rarer day by day: the advent of the internet and of the new technologies in the fields of informatics and telematics have radically changed the concepts of communication, information, transactions.
The possibility, for e-mails, to acquire the same value as private agreements has always been controversial in Italian law. This is due to “private agreements” (i.e. a document signed by a party) constitute conclusive evidence, towards the counter-party, of the facts and the content represented inside, provided that the counter-party does not contest the authenticity of the subscription (see art. 2702 of the Italian civil code). In essence, this means that anybody, in seeking to assert their legal rights in the Courts, may prove facts unfavorable to the counter-party by producing a document signed by the latter, however, should the signature be false, the counter-party may contest its authenticity during the course of the proceedings.
The same evidential effectiveness is also attributed to the so-called “mechanical reproductions” (e.g., photocopies) in the case where the party whom the copies are alleged against does not contest their conformity to the original document (see art. 2712 of the Italian civil code): or in other words, if the counter-party is unable to prove the copy does not match the original.
On the basis of the aforementioned regulations, one may conclude that e-mail (in particular, where not digitally signed) may not have such evidential effectiveness in Court, regardless, the Italian Supreme Court has recently expressed a different view.
In fact, the Supreme Court with the Ordinance No. 11606/2018, adjudicated that “e-mail is a ‘digital document’, or an ‘electronic document containing the computerized representation of judicially relevant deeds, events or data. The e-mail therefore, lacking any signature, can be deemed as a computerized representation, and thus as one of the mechanical representations referred to in art. 2712 of the Italian civil code. Therefore, according to the art. 2712 of the Italian civil code, e-mail is in fact valid proof of any deed or event there represented if the compliance with such deeds and facts is not disregarded by whom it is produced against”. This means that anybody who wishes to assert his/her rights in the Courts may support their claims also by producing e-mails, which will be evaluated as conclusive evidence of what is contained therein, provided that the counter-party does not contest (and prove) their falsity.
In the aforementioned case the Court, on the sole basis of the attached e-mails (whose provenance and content was not contested) considered the existence of a contractual supply relationship between two companies and a credit for default of payment of one towards the other as proved .
In other words, the copies of the written documents (signed by a party) now have evidentiary assimilation to simple e-mails without a digital signature.
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