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.

1. E-registered mail
an example of Trusted Third Party regulation
June 9th, 2011 | Crids | Namur
François Coppens
Researcher - Crids

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. 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. 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. 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. « 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. « 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. « 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. 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. Thank you for your attention
François Coppens
Researcher - Crids
coppensf@fundp.ac.be
Associate Lawyer – De Wolf & Partners
francois.coppens@dewolf-law.be
10