Technology and digitisation have pervaded into all areas of life, rendering several things obsolete. People now resort to using digital documents and e-copies, reducing the number of printed documents in circulation. With a rise in using electronic documents and digital contracts in place, legal questions arise as to whether these are admissible in court or not?
This article will detail what constitutes digital documents, which ones are admissible in court and what are the exceptions to the rule.
What is electronic evidence?
Electronic evidence is any information stored or transmitted in digital form. It applies to electronically generated documents as well as physical hard copy documents that are scanned and stored. All documents are stored electronically as well as documents stored by Internet service providers.
With technology being widespread and the sharing of material and documents, as well as contracts and meetings taking place online, the amount of electronic data in store has increased. Offices have replaced paper with digital documents for business communication.
The reduction in office spaces has prompted the digital sourcing, creation and storage of documents. With phones, tablets and laptops penetrating deeply into society, the need for carrying physical documents around has been greatly reduced.
Uniform Evidence Act
The Evidence Act in Australia details what documents are admissible in court. For a while, the paper has been the most common and widely accepted format of documentation. Following this thought, the only documents acceptable in court as evidence were paper copies i.e. the original document. Consequently, there were no provisions for the admissibility of digital documents. However, provisions to the Evidence Act have expanded the definition of documents.
For any document to be admissible today in court as evidence, a document needs to be
- In any form; or
- Which has been produced by a device, such as a scanned or digitised copy of records.
Digital and electronic evidence also includes text messages, emails, and chats conducted on social media sites as well as online transaction records. E-documents of contracts are also acceptable in court as evidence.
Authenticity and Security of Electronic document
A key concern with digital documents arose around the security and authenticity of these documents. With digital documents, it is important that the source and the origin of the documents can be traced. It is also important to know how many copies of the document exist, whether and how it has been circulated and who has access to the documents. Safe storage is also required for sensitive documents that need to be protected from the public eye.
All these concerns arise due to the possibility that digital documents can easily be forged. E-signatures can be copied onto forged documents, creating safety concerns regarding the use and storage of such sensitive information onto digital storage. Unquestionably, these concerns can also come up in court and may render your documents inadmissible.
To ensure the authenticity of the document, anyone who produces an electronic document in court needs to be careful of the following.
- They need to provide sufficient evidence regarding the documents coming into existence. This helps ensure that the documents were not tampered with during the time they reached the court.
- There needs to be no doubt regarding the fact that the documents have not been edited, altered or forged and that the original documents are being produced.
- Producers of digital evidence also need to ensure that their systems are reliable and there is no technical error that can lead to the documents being challenged.
- The identity of the author and all individuals who have access to the documents should not be in question.
Importance of keeping online records organised?
Business communication needs to be stored securely for legal purposes. With business communication being conducted solely on devices now with minimal paperwork, the storage and organisation of these documents for legal evidence are more important than ever.
The provisions of the Electronic Transactions Act allows digital documents to be stored and be admissible when meeting legal requirements. Previously, offices would have filed copies of the official documents and stored them.
Digital documents are now admissible in court, but it is imperative that businesses and organisations manage and store their documents in an organised manner. Archiving through technology is cost and space effective, and can be micro-organised, making the retrieval and security of documents easy and guaranteed. Several organisations have formulated document retention policies. These policies dictate the procedures of storing and archiving business communication and all documents that businesses are required to maintain by law.
Exceptions to Admissible Electronic Evidence
Provisions are increasingly made to accommodate different forms of digital and electronic evidence. However, some documents are still inadmissible in court if produced electronically. These include migration and citizenship documents.
The following documents also cannot be produced electronically:
- Documents such as the statutory declaration, power of attorney, will trust and guardianship documents that require witnessing or endorsement in the form of ‘wet signatures.
- Copies of original documents for verification or certification purposes.
Any documents which have been verified by seals or stamps cannot be produced electronically.
Business Records Evidence Exception
All electronic evidence submitted must be verified by a witness that can provide authenticity regarding the origin and contents of the documents. However, business records are an exception to the rule.
Business documents and records are admissible in court without requiring witnesses to guarantee authenticity. There are some pre-conditions to the rule such as
- The documents must be created during the ordinary course of business i.e. through normal procedures.
- The persons responsible for admitting the documents to the court must know the documents.
Hence, these conditions should be taken into account even during the data retention process archival organisation of business records that may need to be produced for legal purposes.
Key Takeaways
- With the rise of technology and electronic means of communication and work, electronic evidence has been made admissible in Australian courts.
- The production of electronic documents is subject to certain pre-conditions that verify the authenticity of documents and the sanctity of evidence produced in court. These are detailed by the Evidence Act and the Electronic Transactions Act.
- For businesses, it is important to have a methodical and organised data policy in place to ensure the proper storage of business documents in line with legal conditions.
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Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.