What is the legal value of native electronic documents (that do not require signature by the parties)?
The majority of legislation generally recognizes the validity and probative value of documents that are natively electronic (i.e., created as electronic originals), subject to compliance requirements.
According to Ireland’s Electronic Commerce Act of 2000, “Information (including information incorporated by reference) shall not be denied legal effect, validity or enforceability solely on the grounds that it is wholly or partly in electronic form, whether as an electronic communication or otherwise.” Some exceptions to this rule include sworn affidavits, enduring powers of attorney and trusts. Therefore, HR-related documents (e.g. employment contracts, letters of intent, etc.) can be created directly in electronic form, without need for a paper original.
Note that, according to the Act, information may only be retained electronically if:
- there is a reliable assurance as to the integrity of the information from inception;
- information can be displayed intelligibly (clearly) to the individuals who will access the document;
- it’s readily accessible so it can be used for future reference;
- the record meets information technology and procedural requirements (when required/presented to public bodies); and,
- the person for whom the record is required or permitted to be retained consents to that electronic form (both public and non-public bodies).