Nowadays, a large part of our relationships, both at social and professional level, develops through the use and management of new technologies; a reality that, beside generating a social revolution, has also brought about a revolution in the labour and legal environment in which we, lawyers, operate. Among other questions, we should ask ourselves: is the evidential value of an email equivalent to a read receipt and a registered letter?; are video surveillance recordings or publications on social networks valid as evidence for the Courts?; is a contract always valid when it is concluded through electronic means, be it emails, telephone messages or other means of communication?; questions that both companies and legal professionals ask themselves when a deal or contract is called into question, and whose lack of a firm answer leads to a certain legal insecurity in this respect.
When we refer to electronic evidence, we mean all the information with evidential value that has been transmitted by electronic means or that is included in it; that is to say, we can differentiate between two modalities of electronic evidence; on the one hand, we have the data that has been stored in a technological device, and, on the other hand, the information that has been transmitted through communication networks.
We can confirm that the Courts generally consider an electronic evidence valid as long as there are no doubts about its veracity. And this is the complicating factor since, to this effect, there is a need to demonstrate the authenticity of these proofs in two basic aspects: that their apparent author is their real author and that the data they contain has not been altered. Moreover, for an electronic evidence to be regarded as valid, it must have been obtained in a lawful way. Therefore, the evidence will have to incorporate data of legality, ownership, necessity, and procedural admissibility to the procedure.
These requirements are more than justified since modifying an electronic evidence is a simple task for any user with basic computer knowledge. In fact, you can easily edit an attachment or alter an e-mail message with respect to its (sender, receiver, date, etc.), its content or the folder of its location. Similarly, people with high computer skills can access servers and digital platforms, public or private, obtaining the information they want, whether confidential documents, passwords, account numbers, contacts, etc. leaving no trace of their presence in our “clouds”. This reality often falls within the phenomenon of “cyber-attack”, a figure that we already referred to in the article published by our firm on our website in June 2019: “Piracy, a Reality in the Twenty-First Century”.
In the hypothetical case that the Court or one of the parties questions the authenticity of the evidence, it will be necessary to verify it by a study carried out by a computer expert. If it is not provided voluntarily, to access the evidence always requires judicial authorisation, which will be granted provided that the basic principles of regulation, suitability, exceptionality, necessity, proportionality, and speciality are respected with this intervention. Let us not forget that when a technological device is intervened in a judicial context there are several fundamental rights that may be affected, both of the victims or people linked to the event, as well as of third parties not connected to the conflict, such as the right to privacy, communications or data protection.