Legal Reliability of Registered Email for Court Agents’ Reporting Obligations

Certification platforms based on providing an email link to download a communication raise, in the context of compliance with Court Agents’ reporting obligations to lawyers, two fundamental questions:

1. Do these platforms provide greater legal reliability compared to eEvidence?
2. Does eEvidence provide adequate legal reliability for accrediting compliance with such obligations?

In this document we try to answer both questions.

Regulatory framework

In 2016, Regulation (EU) No 910/2014 of 23 July 2014 on electronic identification and trust services came into force, among whose purposes is to establish a common regulatory framework in the definition and identification of trust services in electronic transactions. Within the framework of this Regulation, eEvidence is defined as a “certified electronic delivery service”:

a service that allows data to be transmitted between third parties by electronic means and provides evidence related to the management of the transmitted data, including proof of sending and receiving the data, and that protects the transmitted data against the risks of loss, theft, deterioration or unauthorized alteration. (Article 3.36).

on which the Regulation adds that:

Data sent and received by means of a certified electronic delivery service shall not be denied legal effect or admissibility as evidence in legal proceedings solely on the grounds that they are in electronic form or do not meet the requirements for a qualified certified electronic delivery service. (Article 43.1).

In addition, the eEvidence service meets some of the requirements to be considered a “qualified service” (Article 44.1), including identifying the sender, ensuring the non-alterability of transmitted data by protecting them with an electronic signature and establishing through a qualified time stamp the date and time of sending and receiving the data.

The same regulatory framework would apply to services in which access to the communication is provided through a link delivered by email, such services being able to enjoy the consideration of “qualified” only in those cases where the download of the communication is mediated by the identification of the recipient, that is, the identification of who carries out such download.

Leaving aside the legal backing of both services, what is intended here is to determine which of the two provides greater guarantees of compliance with the duty of Court Agents in relation to communication with lawyers.

About the duties of the Court Agent

In the context of the court agent–lawyer relationship, we understand that, according to art. 26.2.2º of the LEC, the Court Agent’s communication obligations are limited to having to “transmit to the lawyer (…) all documents, background or instructions that are sent to him or that he may acquire (…)”. A logical consequence of this obligation is the burden of being able to accredit its compliance. Therefore, the need for proof focuses on being able to accredit the transmission, or if you will the “delivery”, of a certain communication, regardless of whether it has been read or not by its recipient (lawyer).

A priori, one might think that a service consisting of sending a link for whose download the identification of the recipient lawyer is required, adds to any other service the evidence that a specific person would have accessed – read? – the communication. In this regard, and taking into account the complexity that this identification entails, it is appropriate to insist on what is really the obligation (and the burden of proof) of the Court Agent. In our opinion, that obligation (and burden) is limited to the transmission/delivery of the communication, not extending to the effective reading (or access) of it by the lawyer.

Based on the above, what deserves to be compared is a method that accredits the effective delivery of a communication to the lawyer’s mailbox (eEvidence method), versus another method that accredits on the one hand the effective delivery to the lawyer’s mailbox of a link to the communication and on the other the eventual download of it.

We do not appreciate significant differences in the accreditation of what both methods deliver to the recipient’s mailbox. It is in the proof about the activation of the link and the download of the communication where we identify some problems in the link method, problems that can make its probative effectiveness complex, and even doubtful.

Key doubts about the link-based method

• Will a certificate be issued for communications not downloaded?
• If so, what delay may exist between the availability of the link and the issuance of such certificate for communications not downloaded?
• If the certificate is issued only upon download, how to prove communications that were never accessed?
• What happens if the download is triggered automatically by a security system (sandbox), without the lawyer’s intervention?
• Can the IP address of the download really be linked to the specific lawyer?

All these scenarios undermine the reliability of the link-based method.

Legal reliability of the eEvidence method

eEvidence delivers the communication directly to the recipient’s mail server, making such communication available to the lawyer without requiring any action on their part. eEvidence records (proof) who sent the communication, what was the exact content of it, to whom it was addressed, what mail server accepted it and when such delivery occurred.[1]

Key advantages of the eEvidence approach:

• The certificate is issued in seconds, at the moment the communication is accepted at destination.
• If delivery fails, the Court Agent is immediately informed.
• Communications are delivered to the mail server listed in public DNS records, verifiable and non-objectionable at all times.

The conclusion is that through eEvidence the Court Agent obtains sufficient proof of the essential part of their obligation to transmit or deliver (on a durable medium such as email) communications to the lawyer, regardless of whether they are read or not[2].

In view of all the above, the simplicity of eEvidence is precisely what makes it robust, particularly for the specific needs of Court Agents, by allowing them to accredit compliance with their obligations (article 26.2.2º and 3º LEC[3]) without the inconveniences and doubts previously exposed.

FAQs

What is the main obligation of a Court Agent in Spain?
To transmit to the lawyer all documents, background or instructions they receive or acquire, and to be able to prove such transmission.

Does the law require proof that the lawyer read the communication?
No. The duty is limited to proving transmission/delivery, not the effective reading of the message.

Why is registered email preferable to link-based platforms?
Because registered email provides immediate, immutable proof of transmission and delivery, without depending on uncertain factors like link downloads, IP identification, or third-party server availability.

Is registered email legally recognized in the EU?
Yes. Under Regulation (EU) 910/2014 (eIDAS), electronic registered delivery services have full legal effect and admissibility as evidence in court.

Conclusion

Registered email with eEvidence provides Court Agents with the most robust, simple and legally reliable method to accredit compliance with their reporting obligations to lawyers. Unlike link-based systems, it avoids uncertainties about downloads, server availability or IP attribution, delivering direct, immutable proof of transmission on a durable medium.

For Court Agents, this means legal certainty, efficiency, and peace of mind when meeting their statutory duties.

Carlos Ticó
CEO, eEvidence

[1] Regarding the probative value of such delivery and in the absence of other regulatory references, it is worth taking into account what is provided in article 28.2 of Law 34/2002 (LSSI), as well as article 11 of directive 2000/31/EC of June 8, 2000.

[2] Without being required to accredit the effective access/reading of the communication, 152.1.2º, third paragraph, the intervention of eEvidence would be sufficient in this sense to leave “sufficient record of having been practiced at the electronic address enabled for this purpose, chosen by the recipient.” (Article 152.1.2º paragraph 3 of the LEC).

[3] Note that according to said precept the obligation of the court agent is to “transmit” or “pass”, he is not even obliged to deliver.

[4] Although referring to notifications from the Justice Administration to the parties, Article 152 of the LEC establishes a mechanism to validate the notification made by email, without in any case requiring either the effective “opening” (or reading) of the communication or the identification of the person who eventually “opens” (or reads) such communication. In the absence of other regulatory references, it can reasonably be concluded that if what is valid and considered sufficient is the sending of the email to the indicated electronic address, it also serves for communications between lawyer and court agent.