Many organisations want to scan or image their paper documents and destroy the paper original and rely on the image as evidence of business activities. The question that is frequently asked is this: Can physical source documents (for example paper) be destroyed after being imaged and will an imaged document stand up in court? There is no simple answer to this question.
ECT Act and Document Imaging
The Electronic Communications and Transactions Act 25 of 2002 (ECT Act) permits the keeping of records in electronic form (sections 14 and 16) but does not provide details or guidelines on what organisations should implement in practice. The ECT Act also does not override provisions in other laws where electronic retention is specifically excluded or where requirements are prescribed.
It is therefore advisable to perform a review of regulatory requirements before physical source documents are destroyed after imaging. Expert legal opinion suggests that the issues around the authenticity and admissibility of electronic imaging are best resolved by the creation and implementation of rules of ‘best practice’ which must be used in conjunction with the existing South African law of evidence.
Law of Evidence
Imaged documents can be used as evidence in terms of section 15 of the ECT Act (i.e. they are admissible). However, the court has a discretion to decide what the evidential weight of the document will be. The evidential weight of the document will be affected by a host of factors including the common sense, logic and experience of the judge who is vested with a discretion when assessing the evidential weight making it impossible to guarantee the evidential weight or work out with accuracy in advance what weighting will be attached to the evidence. Moreover, and importantly, evidential weight is dependent on other controls being in place through policies, processes and procedures to counter any challenges to the evidential weight on technical grounds (e.g. that the scanning was haphazardly conducted or was prone to tampering).
To assist organisation with ensuring the legal admissibility of imaged records, the South African Bureau of Standards (SABS) adopted an international good practice framework in February 2005: SANS 15801: 2005 Electronic imaging – information stored electronically – recommendations for trustworthiness and reliability.
What should be done in practice?
Maximising evidential weight is dependant on other controls being in place through policies, processes and procedures to counter any challenges to the evidential weight on technical grounds (e.g. that the scanning was haphazardly conducted or was prone to tampering).
What we offer
Having regard to inter alia SANS 15801, the ECT Act and the common law, we offer the following:
- A Legal Opinion on Imaging: We can provide you with a general legal opinion that outlines the interpretive process to be used by you when assessing the legal risks of imaging a paper based document.
- An Imaging Policy: Imaging must be conducted in accordance with a policy and prescribed procedures. Failure to do so could expose an organisation to legal challenges around the authenticity and reliability of imaged records.
- A Procedures Manual for Imaging: The Imaging Policy states what needs to be done to preserve the reliability of the digitised information. The manual describes how this must be accomplished in practice.
- ISO/SANS 15801 Checklist: This checklist contains approximately 340 compliance requirements provided in spreadsheet format. The checklist outlines the requirements of the SANS 15801 Standard to be complied with and provides guidelines and options.