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

• Author: Paul Lambert
• Position: B.A., LL.B., Commercial LL.M., CTMA, Solicitor, Information Technology Law Unit, Matheson Ormsby Prentice
• Pages: 23-49

THE SEARCH FOR ELUSIVE ELECTRONS:

GETTING A SENSE FOR ELECTRONIC

EVIDENCE

PAUL LAMBERT*

I. INTRODUCTION

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

technology.1

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

http://news.cnet.com/News/Pages/Special/Microsoft/msft_ruling.html,

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.

II. ELECTRONIC EVIDENCE HERETOFORE

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.

6 [1982] 75 Cr. App. R. 149.

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.