IN THE ERA OF NATIONAL DIGITAL TRANSFORMATION - HOW VALID IS DATA MESSAGE?
Implementing the “Program for National Digital Transformation by 2025, with orientations towards 2030” according to Decision No. 749/QĐ-TTg of the Prime Minister dated 03 June 2020, the Ministry of Information and Communications has researched, proposed amendments, supplements and drafted the new Law on E-Transactions to create a complete legal corridor to transform activities from the real environment to the digital environment in all industries and fields. On 22 June 2023, the National Assembly officially passed the Law on E-Transactions 2023 with a voting rate of 94.74%. In the current era of national digital transformation, under the Law on E-Transactions 2023, how valid is data message?
I. Legal basis
+ Law on E-Transactions No. 20/2023/QH15 issued by the National Assembly on 22 June 2023 (“Law on E-Transactions 2023”);
+ Criminal Procedure Code No. 101/2015/QH13 issued by the National Assembly on 27 November 2015 (as amended, supplemented in 2021) (“Criminal Procedure Code 2015”);
+ Law on Administrative Procedure No. 93/2015/QH13 issued by the National Assembly on 25 November 2015 (as amended, supplemented in 2019) (“Law on Administrative Procedure 2015”);
+ Civil Procedure Code No. 92/2015/QH13 issued by the National Assembly on 25 November 2015 (as amended, supplemented in 2019, 2020 and 2022) (“Civil Procedure Code 2015”);
+ Civil Code No. 91/2015/QH13 issued by the National Assembly on 24 November 2015 (“Civil Code 2015”);
+ Law on Notarization No. 53/2014/QH13 issued by the National Assembly on 20 June 2014 (“Law on Notarization 2014”);
+ Law on E-Transactions No. 51/2005/QH11 issued by the National Assembly on 29 November 2005 (“Law on E-Transactions 2005”);
Decree No. 23/2015/NĐ-CP on the issuance of copies from master registers, issuance of certified true copies from originals, authentication of signatures and contracts issued by the Government on 16 February 2015 (“Decree 23/2015/NĐ-CP).
II. Definition
According to the current laws on electronic transactions, “data message” means information created, transmitted, received and stored by electronic means (Clause 12 Article 4 of the Law on E-Transactions 2005). In which, “electronic means” is defined as means that operate based on electric, electronic, digital, magnetic, wireless, optical, electro-magnetic technologies or similar technologies (Clause 10 Article 4 Law on E-Transactions 2005). Therefore, from the above regulations, it can be understood that data message is information created, transmitted, received and stored by means that operate based on electric, electronic, digital, magnetic, wireless, optical, electromagnetic technologies or similar technologies.
The Law on E-Transactions 2023 (expected to take effect on 01 July 2024) has some changes to the definition of “electronic means” but not significantly. Specifically, in addition to the objects mentioned in the Law on E-Transactions 2005, the objects of “hardware, software, information system” are also added to this definition (Clause 2 Article 3 Law on E-Transactions 2023). However, this definition only contributes to specifying objects and does not expand them further. Accordingly, the definition of “data message” is almost similar between the Law on E-Transactions 2005 and the Law on E-Transactions 2023.
III. Legal validity of data message under the Law on E-Transactions 2023
In general, data message under the Law on E-Transactions 2023 continues to inherit and develop the principle values provided in the Law on E-Transactions 2005. In particular, data message (i) cannot have its legal validity disclaimed (Article 8 of the Law on E-Transactions 2023 and Article 11 of the Law on E-Transactions 2005), (ii) is valid as written documents (Article 9 Law on E-Transactions 2023 and Article 12 Law on E-Transactions 2005), (iii) is valid as originals (Article 10 Law on E-Transactions 2023 and Article 13 Law on E-Transactions 2005) and (iv) is valid as evidence (Article 11 Law on E-Transactions 2023 and Article 14 Law on E-Transactions 2005) when fulfilling the legal requirements.
1. Data message is valid as evidence
Although both the new law and the old law stipulate that data messages have value for use as evidence, the wording in Clause 1 Article 14 Law on E-Transactions 2005 “A data message cannot be disclaimed in terms of its validity as evidence for the sole reason that it is a data message” does not accurately and specifically express the issue that needs to be communicated and may lead to many interpretations when applied because the value used as evidence of the data message is not yet clear and transparent.
The Law on E-Transactions 2023 has replaced the above regulation with the content “Data message shall be used as the evidence according to regulations of this Law and procedure laws” (Clause 1 Article 11 Law on E-Transactions 2023). With respect to the value used as evidence of the data message, there seems to be no change between the Law on E-Transactions 2005 and the Law on E-Transactions 2023. Precisely, a data message is valued as the evidence on the basis of the reliability of the manner in which the data message is generated, sent, received or stored; the manner in which the integrity of the data message is ensured and remained; the manner in which originators, addressees of the data message and other appropriate factors are determined (Clause 2 Article 11 Law on E-Transactions 2023).
In addition, this content also only generally stipulates that data message will be used as evidence “in accordance with the provisions of this Law and procedure laws” without specifying the applicable principles to avoid overlaps and duplications that may arise in the process of applying laws.
Regarding criminal proceedings, based on Point c Clause 1 Article 87 Criminal Procedure Code 2015, electronic data is identified as one of the sources of evidence. Accordingly, the Criminal Procedure Code 2015 has specific regulations on how to determine the evidentiary value for this type of document similar to the provisions of the Law on E-Transactions. Particularly, electronic data constitutes evident value according to the methods of its creation, storage or transmission; the methods for assurance and maintenance of the entirety of electronic data; and the methods for identifying creators and other proper factors (Clause 3 Article 99 Criminal Procedure Code 2015). In addition, the Criminal Procedure Code also does not have further detailed instructions on the standards to determine which electronic data qualifies as evidence, and which data does not.
Regarding civil and administrative proceedings, similar to the criminal procedure laws, civil and administrative procedure laws stipulates that electronic data is one of the sources of evidence (Clause 1 Article 94 Civil Procedure Code 2015 and Clause 1 Article 81 Law on Administrative Procedures 2015). However, unlike other sources of evidence, when determining evidence according to Article 95 Civil Procedure Code 2015 and Article 82 Law on Administrative Procedure 2015, in cases of “regarded as evidence” or “is evidence”, the above regulation only stipulates that “electronic data messages are expressed in the form of electronic data exchange, electronic documents, electronic mail, telegrams, and faxes and other similar forms according to the provisions of laws on e-transactions” (Clause 3 Article 95 Civil Procedure Code 2015 and Clause 3 Article 82 Law on Administrative Procedure 2015). Compared to the Criminal Procedure Code 2015, the Civil Procedure Code and the Law on Administrative Procedure 2015 do not stipulate the conditions for a data message or electronic data to qualify as evidence. Thus, it can be understood that any data message that qualifies under the Law on E-Transactions may be considered as evidence under the Civil Procedure Code 2015 and the Law on Administrative Procedure 2015.
2. Notarize and authenticate data message
Compared to the Law on E-Transactions 2005, the Law on E-Transactions 2023 has supplemented an entirely new regulation regarding notarization and authentication of data message. The term “Data message authentication” is also mentioned for the first time in the Law on E-Transactions.
In Clause 2 Article 9 of the Law on E-Transactions 2023, “2. Where any law requires any document to be notarized or authenticated, the requirement of the law is fulfilled if the document is notarized or authenticated according to regulations of this Law and notarization, authentication laws”. The above regulations confirm that data messages are eligible to be notarized and authenticated. However, the notarization and authentication laws still do not have any regulations specifically promulgating the order and procedures for the notarization and authentication of data message.
Accordingly, there exist some inadequate points as follows:
(i) According to the provisions of the notarization and authentication laws, the person requesting notarization or authentication can request the person carry out the authentication or the Notary to carry out the notarization or authentication in the following forms: Authentication of copies from the original, authenticate the signature, notarize and authenticate contracts and transactions. In case of authenticating a copy from the original, Clause 2 Article 2 Decree 23/2015/NĐ-CP stipulates that “Certifying copies of original as true means competent agencies shall certify copies of the original as true based on the original”, accordingly, in case a data message is printed or took the picture, can it be certified as a copy from the original? If so, what basis or method to compare the printed or taken picture data message with the original is not clearly specified.
(ii) Simultaneously, according to the notarization and authentication laws, Article 48 Law on Notarization 2015 stipulates that the person who requests notarization or authentication of signatures, contracts, and transactions must sign in front of a notary. The person carries out authentication or the person receiving documents (in case of reception at the Receiving Department and returning results of administrative procedures). Accordingly, in case papers, documents, contracts, and transactions are signed in the electronic environment in the form of electronic data messages, can the signatures, contracts, and transactions be notarized or authenticated? This question is also currently waiting for an answer from specific instructions of competent authorities.
(iii) According to the provisions of the Civil Code 2015, “Civil transactions by way of electronic means in the form of data messages prescribed in e-transactions laws shall be deemed to be written civil transactions”.
Currently, in practice, notarization and authentication procedures include documents such as inheritance documents, divorce decisions, marriage certificates, birth certificates, death certificates, land use rights certificates, ownership of houses, and other real estate, a bill of exchange is essentially a comparison between the original and a copy or witnessing the signing of documents as a basis for notarization and authentication. In other words, notarization and authentication are performed based on a comparison of hard documents or actual signing events.
From there, it can be seen that although the Law on E-Transactions Law 2023 has paved the way for regulations on notarization and authentication of data messages, in reality, this issue still faces difficulties because there are no specialized regulations yet that have detailed regulations on the order and procedures for this special type of data. Perhaps after the Law on E-Transactions 2023 takes effect, we still have to wait a while longer to be able to carry out notarization and authentication procedures for data messages and electronic data in reality.
3. Converts formality between printed documents and data messages
The conversion from printed documents to Data Messages and vice versa is also completely new provision recognized in the Law on E-Transactions 2023.
Accordingly, the conversion between hard documents (such as licenses/certificates/confirmations, approval documents, etc.) to the data message and vice versa will have to meet a number of conditions, such as (i) Conditions on the integrity of information in data message/hard document, (ii) Conditions on meeting special signs to determine whether it has been converted, (iii) Conditions on digital signatures, etc (Clause 1, 2 Article 12 Law on E-Transactions 2023).
In general, the above regulations only stipulate the requirements and conditions for conversion but do not stipulate the order, procedures, and implementation methods to convert between hard documents and data messages. Accordingly, it is possible that in the future, systems serving this conversion will be built. Carefully, depending on the purpose of use, users need to consult in advance the opinion and consent of the receiving party about the conversion between printed documents and data messages to avoid unnecessary conflict.
IV. Conclusion
Compared to the Law on E-Transactions 2005, the Law on E-Transactions 2023 has supplemented specific regulations on the legal validity and ensures reliability for a number of important elements in electronic transactions such as data messages, documents, legal regulations on converting from hard documents to electronic copies and vice versa, as well as regulations on Data Message authentication. The Law on E-Transactions 2023 will create the foundation for many current Laws/Codes/Decrees/Circulars that are implemented in the digital environment. It is a breakthrough in promoting electronic transactions activities. However, the Law only regulates fundamental and basic contents of conducting transactions by electronic means, and there are still no specific regulations on processes, procedures, and specific ways to be able to convert from hard documents to data messages, as well as perform data message notarization/authentication or applying the Law on E- Transactions to the field of administrative, criminal, or civil procedure is still ambiguous. Accordingly, in order for the new regulations to be thoroughly implemented in the near future, we will probably need to wait for further amendments and supplements to a number of legal regulations as well as specific instructions from the competent authorities in relevant fields.
ADK VIETNAM LAWYERS
