The integrity of data message from legal perspective (Part 1)

Recently, most parties involved in electronic transactions have been expressing an outstanding interest in the integrity of data messages since it is considered one of the important criteria to determine the value as evidence and the value as the original of such data messages.

According to the definition in the Law on Electronic Transactions 2005: “Data message is information created, sent, received and stored by electronic means”. In a guiding resolution of the Judicial Council of the Supreme People’s Court, electronic data messages used in electronic transactions must be formatted according to the provisions of the law on electronic transactions and the guidance of the Supreme People’s Court, by forms such as electronic data exchange, electronic documents, electronic mail, telegram, telegraph, fax and other similar forms.

This article shall be divided into parts to thoroughly evaluate the integrity of the data message, which is the basis for determining (i) the original value and (ii) the evidence value of the data message:

1.   The data message has the same value as the original

The data message is valid as the original when the following conditions are met:

a)   The content of the data message remains intact since it is first initialized as a complete data message.

First initialization means the acts of creating a data message by using electronic media, computer applications, etc. For example, a document drafted by using Microsoft Word application, stored as a .doc or .docx file, implicitly attached with information about date, time of creation, originator and other attributes then such file containing data message is considered first-time initialized. Any interferences, amendments to any information, explicitly or implicitly, shall cause the file to lose its integrity, and such interferences and/or amendments are also traced on the computer system and can be looked up technically by right-clicking on the file and select “Properties” item.

The integrity of the first initialized file will be lost when there are acts of interference that change the content of the data message attached within such file. However, The integrity of the first initialized file will be lost when there are acts of interference that change the content of the data message attached within such file. However, intervention may also create a new file, containing and displaying new data messages. In addition to the changes has been saved on the computer system, the information about the modification date and time, the editor and the editing history of the file shall be updated accordingly, and can be easily accessed, searched in the same way as mentioned-above, after closing the Word document, right-clicking and select Properties.

It can be concluded that the contents of data messages and information contained in a first initialized file may be easily edited, tampered with and continuously changing. Even hidden content and information that must apply special methods to look up can also be modified too and therefore, cannot guarantee the integrity of the file and the data messages in the process of transmitting, sending, opening and displaying such file and data messages. This issue raises a requirement for the integrity of the content of data messages in electronic transactions, according to which: “The content of a data message is considered complete when it has not been changed, except for changes in appearance arising in the process of sending, storing or displaying data messages”. Thus, a data message can still remain the same value as the original in case it is changed in forms but not in the content.

Although a data message is still considered integrity when the data message has been changed during the process of sending, storing or displaying, but in order for a data message to be exploited when the law requires, such data message must be stored by any method that satisfy the following conditions:

Article 15. Storage of data messages

1. In cases where the law requires records, files or information to be stored, such records, files or information can be stored in the form of data messages when the following conditions are satisfied:

a) The information in the data message is accessible and usable for reference when necessary;

b) The contents of such data message are stored in the very format in which it was originated, sent or received, or in a format which can be demonstrated to represent accurately its contents;

c) Such data message is stored in a manner to enable the identification of its origin, destination, and the date and time when it was sent or received.

2. Contents and time limit for storage of data message shall comply with the provisions of law on storage.

The identification of origin, destination and the date and time under point (c) above are referring to the hidden contents and information of data messages and electronic documents, electronic vouchers, etc. If such hidden contents and information are not considered as contents that need to ensure the integrity as a data message then every text files, electronic documents, electronic vouchers, etc. can easily be interfered with or edited without being able to distinguish which is the original. The most common practice is that the users initialize a data message for the first time to save the contents of documents and papers by scanning and taking photos of them, converting them into file extensions such as .pdf, .jpg, .png… With editing tools like photoshop, it is possible to entirely interfere with the content of the text displayed on such file extensions, causing them to lose their integrity compared to the time the files were created.

So, is there any way to ensure that the data message is original from the moment it is first initialized? The next article shall analyze and explore the purpose of developing and exploiting electronic signatures, ways to ensure the integrity of data messages when converting from paper documents and vice versa, as well as other cases and circumstances which data message is incomplete but is still recognized as valid.

By: Phong Tran (Vento) | LinkedIn
(To be continued)

---

[1] Resolution No. 04/2016/NQ-HDTP on 30 December 2016