The search for elusive electrons: getting a sense for electronic evidence

AuthorPaul Lambert
PositionB.A., LL.B., Commercial LL.M., CTMA, Solicitor, Information Technology Law Unit, Matheson Ormsby Prentice
It is not an exaggeration to say that the most
central problem in the whole of the law relating
to computers, and perhaps more widely in the
whole of contemporary law, is that concerned
with adaptation of the legal process to deal
efficiently with the introduction of modern
Never before has the pace of technological
development moved so dramatically. Daily advances in
communications and devices are expanding the range of
business and personal activity. One should not assume that
this is only relevant to a distinct section of society. Recent
legislative advances also mean that contracts can now be
completed electronically. It is inevitable that electronic
evidence will increasingly be introduced before our courts.2
2001] Electronic Evidence 23
2 A case which may have used electronic evidence and in which a
defendant pleaded guilty to maliciously publishing defamatory libels on
the Internet is reported in “Man Gets Jail for Internet Libel of Teacher”,
the Irish Times, 21 September 1999. Emails were also used as evidence in
the recent Microsoft antitrust case, see,
USA v. Microsoft, (US Appeals Court), 28 June 2001.
1 Tapper, “Evanescent Evidence”, (1993) 1(1) International Journal of
Law and Information Technology 35. Note also Lambert, “Shareware:
Problems of Definition and Legal Nature After the Oz Email Decision”
(2000) 22 E.I.P.R. 595; Susskind, Transforming the Law.
* B.A., LL.B., Commercial LL.M., CTMA, Solicitor, Information
Technology Law Unit, Matheson Ormsby Prentice.
Some of the instruments for this change are the Electronic
Signatures Directive,3 the Electronic Commerce Directive,4
the Irish Electronic Commerce Act5 and similar legislative
measures in other jurisdictions. While there have been cases
in relation to electronic evidence prior to this these measures
represent a clear recognition of the growth and emerging
importance of both electronic and mobile commerce.
It was often considered that the hearsay and best
evidence rules created difficulties for the introduction of
electronic evidence. Others have argued that these rules are
limited to written documents. In Kajala v. Noble6 for example
the court allowed a copy of a video tape to be introduced in
evidence while the original remained with the BBC. The court
in this instance was less concerned with the initial hurdle of
admissibility than with the actual probity of the evidence.
Another issue for electronic evidence was whether a printed
letter was to be considered the original document or the actual
file saved on computer. Vinelott J. considered this issue in
Derby v. Weldon (No. 9) where he found in favour of the
latter.7 This decision could have consequences for the
introduction of electronic originals.8 There is also an
important distinction between evidence generated
automatically by a computer and electronic evidence
generated by human intervention. The latter involves issues of
24 Judicial Studies Institute Journal [1:1
8 See “Electronic Originals” section below.
7 [1991] 2 All E.R. 901. This case is commented upon by Tapper,
“Evanescent Evidence”, (1993) 1 International Journal of Law and
Information Technology 35, 42.
5 The Electronic Commerce Act, 2000 does not fully implement the
Directive. Work is currently under way to enact further legislation.
4 Directive 2000/31/EC 8 June 2000 [2000] O.J. L178.
3 Directive 1999/93/EC 13 December 1999 [1999] O.J. L013.

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