Can blockchain technology be used to notarize documents?
By Philippe Filippi, Regional Manager Southern Europe, Compart, and Gabriel Gil, Expert Consultant in electronic archiving systems for NF461 certification.
Companies are wondering whether blockchain technology would reduce the number of disputes over the validity of documents. Regardless of its potential, this technology could deliver promised results only if a prior step is taken to guarantee the quality of a notarized document.
Blockchain technology is often relegated to monetary applications (e.g., bitcoin). But it is already capable of much more than that. Last October, MIT became one of the first universities worldwide to use the blockchain to certify the academic degrees it awards its students. The rest is history. What works for a diploma can theoretically be valid for an invoice, a property title, a loan agreement or an insurance policy. This is especially true when the issuers and recipients of these documents belong to different economic regions like Asia, the United States or Europe.
The issue of enforceability of documents
On paper, blockchain indeed offers a response to the hodgepodge of regulatory frameworks that govern the enforceability of documents in the context of international trade. In case of a dispute, it is supposed make it harder to challenge the authenticity of a document presented by one of the two parties. However, it is precisely by casting doubt over the validity of a document submitted by an opposing party that many cases are won.
Different legal contexts
In the digital world, the potential for dispute is much greater due to the differences in ways countries evaluate evidence. The United States, for example, attributes no more legal value to an unqualified electronic signature than do the strictest European Union regulations. And even the use of a qualified signature does not prevent a Brazilian or Israeli judge from rejecting the document on the grounds that the signature it bears is not backed by technology approved in his or her own country.
Blockchain, a step forward, but under certain conditions
From the approval standpoint, blockchain technology could be a real breakthrough. It would specifically allow the recipients of documents, invoices or contracts, to have the same probative force as that of the issuers in cases of dispute. Some observers see a potential to reduce the unfair advantages of companies equipped with compliant legal archiving systems over individuals or small structures that cannot afford these systems. But there is obviously a “but.”
The forgotten document
Curiously, we have always been more concerned with securing the integrity of documents than with looking at the documents themselves. Over recent years, several court cases have revealed overwhelmingly that signature or archiving technologies, regardless of how robust and compliant they may be, do not provide sufficient legal assurance of a document’s originality and reliability. The authenticity and integrity of an electronic document are determined as much at the time it is produced at when it is archived and its transmitted to the recipient. This also applies to total control over the quality and compliance of reliable copies that can replace the originals.
Not letting the evidence be used against you
In the 2000s, lawyers representing a well-known [French?] public figure in a litigation took advantage of this loophole to challenge the validity of a document submitted by the opposing party. They based their testimony on the fact that a phone number written in the document footer contained 10 figures, whereas as the time the document was first printed it only had eight. In another circumstance, a public agency was denied the right to use a document as evidence because it contained a different overlay than the one that was used at the time the facts had occurred. These two examples among others confirm that the issue of enforceability of a document centers not so much on the technological envelope that certifies its integrity, but on that of the very substance of the evidence presented.
The judge alone will decide
In a litigation, it is important to note that in France or any other part of the globe, the judge alone is authorized to assess the validity of the evidence presented to him or her. And the judge has no reason to give more credence to the documents of one or other party. In business law, when a dispute does not concern the interpretation of a word or a contract clause, the case is decided by comparing two documents deemed original, presented respectively by the sender and the recipient. The company must therefore ensure that the evidence it has so carefully preserved will not be used against it, despite all its technical precautions, due to a simple appearance error (e.g., overlay, font or character spacing).
PDF/A, the first pillar of securtiy
The best guarantee against this risk is to use the most recent version of the PDF/A standard (the version that authorizes electronic signatures). Honoring this ISO standard ensures that all components of the document are embedded in the same file and can be restored to the same, even many years later. But the standard will only carry weight if, at the time of production and archiving of the two copies (sender and recipient), the quality and accuracy of the documents have been rigorously verified.
Check the production quality of multi-format documents
Along with other software publishers included in the European Commission's study of the PDF/A compliance verification process used in a legal context, Compart is measuring the complexity of this process, particularly in big companies. They are often under obligation to simultaneously issue their outgoing documents in AFP format for transfer to recipients, and as PDFs for archiving. One solution may be to print from PDF/A, but the ultimate challenge remains the same. The point is to ensure the perfect identity of the two documents produced in order to permit enforceability in the event of litigation.
Tomorrow prepares today
The prospect of using blockchain technology would ultimately require a review of current practices. As the Trump administration recently emphasized when announcing its intention to use blockchain to improve the way the US government functions, the objective is not so much to implement technology today as to prepare for the future. Blockchain technology would replace the big mix of regulatory frameworks and trusted third parties with a distributed model based on a commonly shared technical consensus. And this common protocol is solidly based on inalterability. There is no point in certifying the integrity of a document via an unalterable process if the quality or accuracy of the document is in doubt because of the conditions under which it was created.