For a couple of years now, email communication has been commonly used not only for various informal communications but also as a means of legal acts. Czech law expressly permits the performance of legal acts by electronic means, and email may serve as evidence of the existence and content of a legal act provided that statutory conditions are met.
The basic legal framework is provided by Sections 561 and 562 of the Civil Code. A legal act performed by electronic means retains its written form if it allows for the recording of its content and the identification of the person performing the act. An email message generally meets these requirements, as the content of the legal act is captured in text form and the sender is identifiable at least through the email address and related data.
The requirement for a signature remains a contentious issue, depending on the interpretation of the relationship between Sections 561 and 562 of the Civil Code. Some legal experts argue that a signature is not necessary in the case of electronic legal acts, while judicial practice has so far tended to require the inclusion of an electronic signature and emphasizes that a written legal act presupposes not only a written document but also the signature of the acting party.
An email without an electronic signature may thus be deemed insufficient by a court. On the other hand, a certain degree of consistency can be observed, particularly in the lower courts, in approach based on the equivalence of forms of electronic signatures within the meaning of Section 7 of Act No. 297/2016 Coll., on Trust Services for Electronic Transactions, as amended, meaning that all levels of electronic signatures may be used for signing—that is, not only advanced or qualified electronic signatures, but also simple electronic signatures, which may consist of merely stating one’s name in the body of the email or an automatic footer.
However, this equivalence of forms of electronic signature does not, of course, apply where a specific form is prescribed for a legal act (a certified signature or a public deed) or where the law expressly stipulates stricter conditions for an electronic signature (for example, acting on behalf of the state within the meaning of Section 5 of Act No. 297/2016 Coll.).
From an evidentiary standpoint, an email is considered a private document in electronic form. Anyone who relies on its content in court must prove its authenticity and accuracy (Section 565 of the Civil Code). The inclusion of an electronic signature is therefore of fundamental importance not only for the validity of the legal act itself, but especially for the allocation of the burden of proof and for the evaluation of the email as evidence in a potential legal dispute, since a signed document is presumed to be authentic and accurate, whereas if the email is not signed, no presumption of the authenticity and accuracy of its content arises, and the evidentiary situation is significantly weaker (Section 566 of the Civil Code). It is often sufficient for the opposing party to dispute the sender’s identity or the message’s authenticity.
However, it is important to note that no presumption of authenticity applies to the signature itself (with the exception of a certified signature, the authenticity of the signature is not presumed). Therefore, if the authenticity of the signature is disputed, the party relying on the signature must prove its authenticity. The most significant way to strengthen email evidence is thus not only by attaching an electronic signature but also by using a higher form of it, such as an advanced electronic signature, or even better, an electronic signature based on a qualified certificate. The higher the level of the signature, the stronger the evidence regarding both the identity of the person acting and the integrity of the message’s content.
The probative value of an email is, of course, always assessed on a case-by-case basis in accordance with the principle of free evaluation of evidence, under which any means capable of establishing the facts may serve as evidence. Courts generally take into account the overall context of the communication and established practices between the parties. Subsequent email communication or related conduct of the parties, from which consent, a response, or the fulfillment of obligations according to the message’s content can be inferred, is also significant. Email metadata (message header, time of sending and receipt, server used, etc.) could also be relevant.
In summary, an email may serve as evidence of a legal act, but its probative value depends on the specific circumstances. It will be most compelling as evidence if it is supported by an electronic signature and fits into a coherent chain of other evidence confirming the identity of the acting party, the content of the legal act, and the seriousness of the expressed intent.
Bělina & Partners advokátní kancelář s.r.o.
Our services focus, among other things, on the area of civil and commercial law, including contracts and other legal acts, as well as on representing clients in disputes that may be related to this area.
Bělina & Partners advokátní kancelář s.r.o.