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E-registered mail. An example of trusted third party regulation [2011]

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Short presentation given at the Research Center for ICT and Law (CRIDS), University of Namur, in 2011.

The presentation takes electronic registered mail as an exemplative case of the regulation of trusted third parties under Belgian law.

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E-registered mail. An example of trusted third party regulation [2011]

  1. 1. E-registered mail an example of Trusted Third Party regulation June 9th, 2011 | Crids | Namur François Coppens Researcher - Crids
  2. 2. Introduction Purposes of registered mail • Provide evidences • Provides an evidence of the sending of a letter • Provides an evidence of the moment of such sending • Prove the good receipt and its moment (acknowledgement of receipt – optional) • Fulfill legal obligations Downsides • One must go to the post office • Must be delivered in person Makes e-registered mail interesting
  3. 3. E-registered mail : legal uncertainties Legal uncertainties • Value as evidence ? • Able to fulfill legal obligations ? Questions left open until submitted to a Court • Bad solution, as the purposes of such services is to provide reliable certainty Need for a legal framework
  4. 4. Legal Framework : European law Postal sector is fully liberalized since 1/1/2011 • Monopolies on such services are prohibited Harmonized definition of “registered mail” • But no harmonized regulation E-registered mail is an Information Society Service • Service covered by e-commerce directive (2000/31/CE) • Freedom of establishment • Provision of such services may not be subject to a prior authorization • Applicable legislation : country of establishment
  5. 5. Regulation method : theory of “functional equivalents” E-registered mail and physical registered mail must be granted the same legal value E-registered mail must be regulated in order to provide the same functions as its physical equivalent Regulatory burden of electronic services may not be unnecessarily higher than its physical equivalent… … But differences may be justified because of the different context. Regulation must be technologically neutral
  6. 6. « functional equivalents » : application to e-registered mail Value of the evidences : • Registered mail : reliable evidences because given by a third-party, independent from both the sender and the receiver of the mail ; • E-registered mail • Obligations of independence and neutrality • Guarantees of financial stability and professionalism • Acknowledgments of sending and receipt signed electronically to ensure their reliability and stability
  7. 7. « functional equivalents » :  application to e-registered mail Identification of the sender and the receiver : • Registered mail : ID check, face-to-face • E-registered mail : not possible => need for adequate means. • Point of attention : technological neutrality Confidentiality • Registered mail : closed envelops + unique exemplary • E-registered mail : no “envelop” ; electronic document easily replicable ; could be read without trace • => accrued risks may justify higher obligations regarding security and confidentiality
  8. 8. « functional equivalents » : legal  value of e-registered mail Like registered mail… • Provides evidence of a sending ; • Provides evidence of the moment ; • (optional) provides evidence of the receipt and its moment …and nothing more • Even if technically possible • Ex : no evidence of the integrity of the content E-registered mail may be used where the use of registered mail is required by law
  9. 9. Control of services providers Different possible regimes • Prior authorization • Certification programs • Control by the administration EU Framework concerning Information Society Services is very restrictive • Freedom to provide services • Prohibition of prior authorization services • “home country” law applicable Solution : an harmonized European regime for TTP services providers
  10. 10. Thank you for your attention François Coppens Researcher - Crids coppensf@fundp.ac.be Associate Lawyer – De Wolf & Partners francois.coppens@dewolf-law.be 10

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