Email as Evidence in German Courts: What Counts and What Doesn't

"But I still have the email." The sentence comes up often, and it is rarely worth as much as the person saying it thinks. An email is not worthless in court – but it is not what many take it to be either. This article describes German civil procedure; other jurisdictions have their own rules.

An email is not a document

Documentary evidence under the German Code of Civil Procedure (ZPO) refers to written instruments. An email and its printout do not fall under it: the printout is not the original but a reproduction.

In court, a plain email is therefore treated as an object of visual inspection (section 371 ZPO) and is subject to the free assessment of evidence (section 286 ZPO). The court decides, according to its own conviction, what weight to give the email – without the statutory rules of evidence that apply to documents.

In practice that means: the email helps you as long as the other side does not dispute it. As soon as it is disputed, the real work begins.

When electronic documents carry more weight

Section 371a ZPO governs the evidentiary value of electronic documents. A private electronic document bearing a qualified electronic signature is treated according to the rules on the evidentiary value of private documents. The presumption of authenticity is then held to a stricter standard: it can only be shaken by facts that give rise to serious doubt.

A plain email without such a signature does not reach this level. That is no small matter, but no reason to give up either: in practice, it is rarely the rule of evidence that decides, but how plausible and complete the documentation presented is.

The three lines of attack

Anyone who wants to dispute an email almost always attacks at one of three points.

Authenticity. The text was never written like that. An email is a text file; whoever holds it can change it. A printout shows none of that.

Receipt. The message never arrived. The sender bears the full burden of proof, and sending alone creates no prima facie evidence of receipt (see, for example, Higher Regional Court Rostock, order of 3 April 2024).

Timing. It arrived too late. In business-to-business dealings: if the message is available for retrieval on the recipient's mail server during normal business hours, it is received (German Federal Court of Justice, judgment of 6 October 2022, VII ZR 895/21). To prove that, you need a time record that you cannot set freely yourself.

What raises the evidentiary value

The same thing helps against all three attacks: documentation that does not come from the sender's mailbox and cannot be smoothed over afterwards.

Hashes instead of printouts. A SHA-256 of the bytes actually handed over ties the content to the event. If the text presented later differs, it shows.

The receiving side's response. The response code and queue identifier of the receiving server come from the recipient's system, not yours. That is the part of the evidence you control least – and therefore the most valuable.

Chaining and sealing. If every log entry carries the hash of its predecessor, any later change makes all following entries arithmetically invalid. If the head of the chain is sealed regularly, the chain itself can no longer be rewritten either.

Completeness of the record. A single email presented on its own looks selected. An audit-proof archive that keeps all traffic immutable for the retention period removes the basis for the accusation that you picked out the convenient message.

Two kinds of proof that should not be confused

Proof of delivery concerns the individual message: it arrived, at this time, with this content. It is created at the moment of handover and cannot be produced later.

The archive concerns the body of records: what was written over the years, immutable, searchable, with controlled access. It answers the questions of an audit, not those of a dispute over a single deadline.

In a dispute you usually need both – and before the dispute begins.

How Conbool covers this

SecureMail keeps a chained log for every message: the handover to the receiving server with its response code and queue identifier, the type of connection, hashes of the bytes handed over and of every attachment, and in the message portal every opening with time and IP address. The head of the chain is sealed every fifteen minutes. From this, an evidence document is produced as a PDF that includes the result of the chain check. For ongoing litigation you set a legal hold that suspends deletion for a period of time.

What it does not replace: a qualified electronic signature or a qualified timestamp under eIDAS. Anyone who needs the evidentiary value under section 371a ZPO needs a qualified signature.

This article provides a general overview and is not legal advice. For your specific case, please consult a lawyer.