Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
At this time, it is not possible to guarantee that scanned electronic records will have the same value as paper originals as the legal validity of electronically scanned records is not fully regulated under Serbian law. The good news is that will likely change in the next year.
On October 27, 2017, the Law on Electronical Document, Electronical Identification and Confidential Service in Electronical Business came into force. The by-laws essential to the law’s full application have not yet been adopted, but the time-period for adoption is 6 to 18 months as of October 27, 2017. In accordance with the Law, an electronically scanned document must meet two requirements to be used as an official document and considered equal to the hard copy original:
1. The digitization of the record must be carried out under the supervision of:
- a proprietary of the document (i.e. proxy or authorized representative of the employer), or
- a person who is authorized to verify signatures, manuscripts and transcripts in accordance with the law, or
- persons who are authorized by a special law to verify the digitized document.
2. In addition, the identity of the digitized document must be confirmed by a qualified electronic stamp or qualified e-signature.
Are there any legal requirements for electronic archiving systems (EAS)?
Electronic archiving in Serbia should follow several recordkeeping requirements:
- All essential elements of the archived content should be included and match the original.
- Content in stored records must remain usable.
- Records should be authenticated by electronic seals or electronic signatures with time stamps.
- Controls should be put in place to ensure the validity of converted records, including the elimination of any errors.
- Records of modification to the original document should be stored separately.
- Information relating to the conversion of the document to electronic storage should recorded and stored.
If the record will be held longer than five years, data should be stored in a format appropriate for long-term storage.
As the new Law goes into effect, the Serbian government may add additional regulations and conditions.
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that all paper documents can be destroyed. Indeed, the acceptance of digital copies remains subject to the discretion of the judge. Similar to the electronic signature, electronic archiving will probably also develop to a three-level structure: simple, advanced and certified archiving. Over time, this means that certified electronic archiving will make the burden of proof fall under the responsibility of the challenging party.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.