Publication date: 03.06.2024
Legal Aspects of Recognition of Electronic Evidence in Court
Introduction
Electronic evidence, such as emails, text messages, files stored on computers, and other digital data, is becoming increasingly important in litigation. Their recognition and use requires clear legal regulation to ensure the fairness and reliability of legal proceedings. In this paper, we will consider the main legal aspects of the recognition of electronic evidence in court, including the requirements for its authenticity, integrity and admissibility.
Requirements for Authenticity
The authenticity of electronic evidence means that it is genuine and has not been altered since its creation. Various methods can be used to confirm authenticity:
- Digital signatures: The use of digital signatures to confirm that a document was created by a specific person and has not been altered after signing.
- Meta-data: Analyzing meta-data such as creation date, author, and device identifiers can help authenticate a document.
- Certificates of authenticity: Use of certificates issued by trusted third parties to authenticate electronic documents.
Integrity requirements
The integrity of electronic evidence means that the data has not been altered or damaged since it was created or stored. The following methods can be used to ensure integrity:
- Hash functions: Use cryptographic hash functions to create unique checksums that allow you to verify whether a file has been modified.
- Access control: Implementing access control measures to limit the possibility of unauthorized modification of electronic evidence.
- Change logs: Maintain change logs that record all activities with electronic evidence, including viewing, copying, and editing.
Eligibility requirements
In order for electronic evidence to be accepted by a court, it must meet certain legal requirements for admissibility:
- Compliance with the law: Electronic evidence must be collected and produced in accordance with the law, including personal data protection and privacy laws.
- Relevance: The evidence must be relevant to the case and be relevant to the subject matter of the dispute.
- Non-excessiveness: Evidence should not be excessive or likely to mislead the court;
Procedure for submission and certification of electronic evidence
Electronic evidence shall be submitted in the original or in an electronic copy. A copy of the electronic evidence must be certified with an electronic digital signature, and the availability of the original of such evidence or its location must be indicated. The parties to the case have the right to submit electronic evidence in paper copies with the certification of such copies in accordance with the State Standards of Ukraine. If a copy (paper copy) of electronic evidence is submitted, the court may request the original electronic evidence. If the original of the electronic evidence is not submitted, and a participant in the case or the court questions the conformity of the submitted copy (paper copy) to the original, such evidence shall not be taken into account by the court;
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Before submitting electronic evidence, it is advisable to record it. This can be done with the help of experts or specialized institutions that provide services for recording and researching the content of web pages on the Internet. You can also record it yourself using electronic services, as well as with the involvement of third parties (witnesses) and the creation of a protocol for reviewing the evidence. In practice, I use several options for recording one piece of evidence. By fixing electronic evidence, the risks of proving in case of destruction or alteration of electronic evidence are reduced.
I recommend submitting electronic evidence to the court in electronic and paper copies. This will facilitate the procedure for reviewing electronic evidence by the court. For example, information from a website can be recorded on a disk, flash media (web pages, links, fixations), and printed separately. Copies of the evidence should be certified with a digital signature and your own signature, and included in the case file.
Special attention should be paid to the procedure for submitting and sending evidence to other parties to the case. The court may not take into account evidence that was not sent (provided) to other parties to the case in advance. I have had relevant precedents in my practice - evidence was excluded from the case file upon motions because the procedure for submitting evidence was violated. The opponents did not properly justify the reason for not submitting the evidence earlier, and the evidence was not sent to other parties to the case in violation of the procedural law.
