Authenticity of Copies of Electronic Documents (Article 14)

The law addresses the status of images or electronic copies of documents, as situations often require the use of a copy of the original electronic document for evidentiary purposes.

Article (14) addresses this by stipulating that a copy made from an electronic document is considered to possess the status of the original copy, provided the following conditions are met:

1. Identical Match: The information and data of the copied image must match the original copy exactly, without any alteration or omission. Complete conformity with the original is the primary condition for approving the copy.

2. Reliable Storage of the Original: The original electronic document and its associated electronic signature must exist on a reliable electronic medium (e.g., preserved in a secure database or an approved storage device). The electronic existence of the original is a prerequisite for comparing the copy against it.

3. Retrievability: It must be possible to save and store the information and data of the copied image in a manner that allows for retrieval when needed. There must be a means to store the electronic version so it can be recalled for verification in the future.

4. Preservation of Format: The copied image must be preserved in the same format in which the original electronic document was created, sent, or received, and must be stored in accordance with document preservation laws and instructions. This means the copy must remain in the same data format as the original (e.g., PDF or email) following official archiving procedures.

5. Inclusion of Metadata: The copied image must contain all information indicating the signer, the recipient, and the date and time of sending and receiving specific to the original. This includes including source, destination, and timing data exactly as they appeared in the original electronic document.

If the electronic copy satisfies these five conditions, it enjoys the same probative force as the original copy.

In practice, this means the copy cannot be challenged on the grounds that it is merely an unapproved image, as long as its correspondence with the original can be proven and the electronic original itself is preserved. This ruling serves to protect the stability of electronic transactions, where the copy equals the original in authenticity once technical and legal requirements are met.

Presumption of Validity and Integrity of Electronic Documents (Article 17)

The Electronic Signature Law establishes important presumptions in favor of those who rely on electronic documents, assuming their integrity and validity unless proven otherwise. Article (17) sets forth two fundamental points in this context:

1. An Electronic Document with an Authenticated Signature is Considered Fully Authenticated

If an electronic document (or any part thereof) bears an authenticated electronic signature (valid and approved within the validity period of the certification certificate), it is considered authenticated regarding the owner's signature on its entire content or the signed part, as applicable.

In other words, the presence of a valid electronic signature on a message or electronic contract makes this document proof that it was issued by the signer and that they approved its content, exactly as if it were signed manually before a Notary Public.

2. The Electronic Document is Deemed Valid from the Date of Creation Unless Proven Otherwise

The law establishes a presumption of integrity for the electronic document. It is considered authenticated from the moment of its electronic creation, provided no modification or alteration has occurred subsequently, unless evidence proving the contrary is presented.

This presumption means the default is the validity of the electronic message's content as it existed since its creation. The burden of proof lies with the party claiming alteration or forgery. This is a crucial protection that places initial trust in the integrity of electronic data.

Impact on Litigation:

These two rules contribute to enhancing trust in electronic records before the judiciary.

• The existence of an authenticated electronic signature eliminates the need for complex evidentiary procedures to attribute the document to its owner.

• The presumption of integrity makes the electronic document proof in itself unless evidence of tampering appears.

Naturally, these presumptions are rebuttable (not absolute); an opponent can refute them by presenting technical or forensic evidence of hacking or illicit modification of the electronic data.

Scope of Application and Exceptions

The Electronic Signature Law defines its scope regarding persons and transactions while explicitly excluding certain matters from its provisions. Article (3) mandates that the law applies to:

1. Electronic Transactions: Those executed by natural or legal persons (i.e., all individuals and companies conducting electronic dealings within the scope of private and public law).

2. Agreed Electronic Execution: Transactions where parties agree to execute them via electronic means (even if the transaction is originally traditional, parties may agree to adopt electronic methods for signing or exchange).

3. Electronic Securities and Commercial Papers: Such as electronic bonds, stocks, electronic checks, and similar instruments.

Exceptions to the Law (Article 3/Second)

Conversely, Article (3/Second) explicitly excludes several subjects from the scope of this law, meaning electronic signature and transaction rules do not apply to:

1. Personal Status Matters: Issues related to personal status (such as marriage contracts, divorce, lineage, and other family law matters).

2. Wills and Endowments (Waqf): Creating wills or endowments and amending their provisions. These acts have a special nature requiring specific legal formalities (such as witnesses and official documentation) that electronic means cannot replace.

3. Real Estate Transactions: Transactions related to the disposal of immovable property, including specific powers of attorney (proxies), title deeds, and the creation of in rem rights regarding them—with the exception of real estate lease contracts.

   • This means buying, selling, and mortgaging real estate cannot be conducted electronically under this law, nor can real estate powers of attorney, as they require specific official notarization.

4. Transactions Requiring Specific Formalities: This is a general clause referring to any transaction for which the law requires a specific form or official procedure to be completed (such as registration before a public official or drafting an official paper); these remain subject to their specific laws.

5. Court Procedures and Judicial Notices: Judicial announcements, summons, and court orders (such as search warrants, arrest warrants, and court rulings). These procedures are official in nature and cannot be replaced by ordinary electronic exchange; they are subject to criminal and civil procedure laws requiring official paper notification.

6. Notarized Documents: Any document the law requires to be notarized by a Notary Public.

   • This is a significant exception. Any document that another law requires to be certified or drafted before a Notary Public (such as official contracts and contracts requiring registration) cannot be fully converted to electronic format under Law 78 of 2012.

   • While this phrasing has been criticized for being broad, the intent is likely to exclude transactions mandating legal authentication by a Notary Public to ensure no conflict arises between the new law and traditional formal requirements.

Summary of Exceptions:

Some types of legal actions remain entirely outside the digital space due to their sensitivity or reasons related to trust and significant formal procedures. For example, an electronic marriage contract or selling land via email is invalid because the law has prescribed a specific formal path to ensure their validity. Similarly, judicial correspondence (notifications and rulings) still requires paper and official records, not electronic messages.

Restriction of Probative Value by Condition of Use (Article 15/Second)

One of the noteworthy provisions in the law is the signer's right to restrict the scope of use of the electronic document they issue.

Article (15/Second) states that the signer may prohibit the recipient from using the electronic document for any purpose other than the one for which it was prepared; otherwise, these documents are not binding on the signer.

Implications of this Text:

• If a person sends an electronic document (such as a document or email) and stipulates that the recipient use it for a specific purpose only, the recipient may not use it for any other purpose.

• If the recipient violates this condition and uses the electronic document out of context or presents it as evidence for a purpose other than intended, the document loses its binding force against the signer.

In other words, the law provides the sender of an electronic message with a tool to protect themselves against the misuse of their messages. If they explicitly (or implicitly) disclose that the document is intended for a specific purpose and no other, the recipient cannot legally rely on it to achieve another objective contrary to the original signer's will.

Practical Application:

A person might send an email containing information or admissions for the purpose of negotiation or settlement, not for the purpose of it being a final binding admission before the judiciary. If the sender stipulates this explicitly in the message or a side agreement, that message cannot be used as evidence against them in court outside the scope of the intended purpose. This provides a degree of flexibility and security for electronic dealers so they need not fear their electronic correspondence being weaponized out of context.

Conclusion

Iraqi Law No. 78 of 2012 represents a fundamental step toward full legal recognition of electronic transactions and digital signatures. It establishes the legislative foundation that equates electronic records with paper records, provided technical controls ensuring reliability are observed.

The law has addressed various aspects necessary to achieve trust in the digital environment, starting from defining the electronic signature, regulating its certification process, and mandating licensing for certification authorities, through to determining the authenticity of electronic bonds and their copies, establishing legal presumptions of their validity, and ending with outlining exceptions where traditional paper formalities must be maintained.

Despite the relative delay in implementing the law on the ground, 2025 witnessed the actual launch of electronic signature operations in Iraq, with the issuance of executive regulations and the licensing of the first national certification authority.

This development is set to activate the aforementioned legal provisions, making emails, digital contracts, and other electronic documents acceptable evidence with probative force before judicial and administrative bodies. As institutions and individuals acquire digital legal literacy and appropriate infrastructure is provided, the Electronic Signature Law is expected to contribute to simplifying procedures, reducing reliance on paper, and enhancing public confidence in various forms of electronic transactions.

Sources of legislation and judiciary in Iraq now acknowledge that "Electronic writing and electronic signatures are the twins of traditional writing and signatures in terms of authenticity" within the limits drawn by the law, paving the way for a new era of officially approved electronic evidence.

For expert guidance on digital compliance and documentation, contact Osama Tuma for Legal Services and Advisory. Trust us as your dedicated law firm in Iraq to safeguard your interests in the evolving digital legal landscape.