Since 2014, the eIDAS regulation has standardized and established a framework to ensure that electronic interactions between businesses in the European Union are safer, faster, and more efficient. This move towards digitization on a global scale, and more specifically in the legal sector, has led an increasing number of companies to accumulate sensitive digital documents: confidential internal documents, commercial contracts, shareholders agreements, etc.
These documents are subject to the same legal storage obligations as paper originals for the same length of time, to which sector-specific obligations are sometimes added. Moreover, these originals are subject to additional obligations linked to their digital format, which gives them the same probative value as the paper originals, under the condition that they are stored so that their integrity is preserved. The issue of legal security is therefore critical.
However, many legal professionals need to be made aware of the obligations and implications related to the conservation of sensitive documents. Between backup, storage, and archiving, here is an overview of existing solutions.
Difference between storage, backup and archiving
While the terms are often used interchangeably to refer to conservation, the technical and legal reality behind each is quite distinct.
Backup consists of making one or more identical copies of a file in a system, with the aim of being able to recover it in the event of loss or deterioration. This technique has no particular probative value and in no way guarantees the integrity of the file over time (i.e. its absence of modification or damage).
Storage is the collection and preservation of digital information in a way that facilitates its accessibility, and more specifically the sharing of files and documents for collaborative work. The term commonly refers to both the technology and the medium used. Indeed, information can be stored on several media: a computer, a USB key, a document cabinet, a Drive, a DMS, or even a Closd project. Whatever the medium, the documents are classified according to certain predefined criteria and benefit from more or less advanced security features. However, these systems do not meet legal storage requirements, since the content can easily be deleted or altered by different authorized users. Also, there is no guarantee of long-term integrity, especially in the event of breakdowns, changes of servers, disks, hacking, etc. You also have to take into account the risk linked to the habits of IT teams who sometimes think, wrongly, that an original paper document is always available in case of loss.
Finally, archiving meets legal and regulatory requirements. Particularly adapted to long-term conservation, the objective of archiving documents in an electronic safe is to preserve original documents electronically signed with reliable technology. The purpose is to be able to find them, for example in the event of litigation several years later, while guaranteeing their authenticity and integrity. Just like a physical archive room, the electronic archive or Electronic Archiving Solutions & System (EAS) must meet drastic security requirements in order to guarantee the integrity, confidentiality, availability, durability, and reversibility of the documents stored.
Archiving system: legal validity and functioning
3 criteria guarantee that an electronic document has the same value as a paper document:
- the use of a reliable process (the European eIDAS regulation addresses this issue by listing all certified Trusted Service Providers for electronic signatures)
- the ability to duly identify the signatories (strong authentication during the electronic signature: password, identity verification, SMS, etc.)
- the conservation in such conditions as to guarantee the integrity of the document. This involves the possibility of demonstrating that the document has not been altered, is still complete, and that the medium carrying the information guarantees its stability and the desired durability.
More than just a need, archiving sensitive documents in an electronic safe is therefore a real legal obligation for law professionals. Their primary mission is to ensure the legal security of their clients. It is therefore the indispensable counterpart to any electronic signature technology.
Electronic archiving is based on 5 major principles:
- data integrity
In the event of a dispute, a complete file of evidence regarding both the signature and its preservation will be required to prove that the file has not been altered. It will also be used to detail the process implemented to guarantee and maintain the integrity of the document during the preservation phase. It is therefore possible to ask the archiving service provider to extract one or more archives from the electronic safe in the original digital format, which will be transferred using an external medium.
For each archived document, service providers store several pieces of information about the document, such as:
- The document and its name,
- Standard metadata (data that can be used to describe the process that led to the creation of the information),
- Custom metadata,
- Fingerprints of the document and metadata,
- Archival timestamp,
- Archive lifecycle log and event log.
It is therefore essential for legal professionals to eliminate all risks of loss, alteration, or destruction during the long-term storage of files.
In case of litigation, it is also possible to request the definitive restitution of all documents entrusted to the service providers. This process is called reversibility and involves the total destruction of the archives concerned in the electronic safe and the emission of a certificate of destruction.
Which archiving solution for law professionals?
As a global player in the management of legal transactions, Closd integrates the technology of the French leader in electronic archiving, Arkhineo, into its SaaS solution. This allows customers to archive their documents and contracts signed electronically (via DocuSign and Certeurope technologies, certified as Trusted Service Providers) and to consult their archives directly from the platform on a dedicated, simple and intuitive interface
While Closd meets the first of the two conditions of admissibility of an electronic document as evidence, its partnership with Arkhineo allows to meet the third condition. The electronic safe guarantees the probative value and therefore the integrity of the signed digital documents for the duration of the legal obligations.
In the event of legal or administrative dispute, Closd also provides the proof of signature certificate, as well as the proof of archiving to justify the integrity of the document since its signature.
More than 250 customers from law firms, legal departments, accounting firms, investment banks, or investment funds trust Closd and Arkhineo for their dematerialized processes. Legal security is a key element for the sustainability of companies and their growth. Thanks to the Arkhineo archiving system via Closd, companies can secure their assets and those of their customers in an ultra-secure electronic safe, which creates new growth drivers and increases development opportunities.