Sunil Abeyaratne |
What is the development of Legislation on Information Technology related Evidence?
Information and Communication Technology related evidence may be computer generated or computer related evidence and could be even without human intervention.
Some countries tried to interpret computer evidence as Documentary Evidence or Real Evidence. If computer evidence is interpreted as `documentary evidence' it should be governed under Rules of Primary and Secondary evidence and this shows that computer evidence is not easy to consider as `documentary evidence' under the provisions of the Evidence Ordinance.
What is the legal position in Sri Lanka on Computer Evidence?
Prior to the introduction of Evidence (Special Provisions) Act in Sri Lanka No.14 of 1995, there was no provision under Law of Evidence to admit Computer Evidence. The Act has been introduced to manage computer-based evidence efficiently and legally in civil and criminal proceedings before courts and the Act has accommodated Law of Evidence relating to Information and Communication Technology in other countries as well as in Sri Lanka.
It is also clear that the legislature has adopted flexible attitude for accepting and adopting of evidence relating to Information and Communication Technology compared to other evidence before Courts under the Act. Presiding judge has an inherent power to determine matters, where it is not appropriate or practical to adapt and apply the provisions of the Evidence Ordinance or other law for the interest of justice may require to make an order.
What is `Computer' under the Evidence Special Provisions Act?
It is defined in section 12 of the Act and according to the interpretation `computer' means any device the functions of which includes the storing and processing of information.
What is the legal admissibility of Computer Evidence?
Computer Evidence specified under section 5(1) of the Act as `In any proceedings where direct oral evidence of a fact would be admissible any information contained in any statement produced by a computer and tending to establish the same fact shall be admissible as evidence of that fact subject to the conditions expressed in the same section such as;
- The statement produced or reproduced, is capable of being perceived by the senses;
- At all material times the computer producing the statement was operating properly
or, if it was not, any respect in which it was not operating properly or out of operation, was not of such a nature as to affect the production of the statement of the accuracy of the information contained therein;
- The information supplied to the computer was accurate and the information contained in the statement reproduces or is derived from, the information so supplied to the computer;
However, this shall be subject to the provision that where information contained in the statement is shown to have been produced by the computer over a period during which the computer was used regularly to store or process information for the purpose of any activity carried on regularly over that period.
It shall be sufficient to show that,
(a) during the said period there was regularly supplied to the computer, in the ordinary course of such activity, information of the kind contained in the statement or of the kind from which the information so contained is derived ; and
(b) the information contained in the statement reproduces, or is derived from, information regularly supplied to the computer in the ordinary course of such activity.
Is a transcript, translation, conversion or transformation of computer evidence admissible legally?
Where any statement referred to in subsection 5(1) of the Act,
(a) cannot be played, displayed, or reproduced in such a manner as to make it capable of being perceived by the senses;
(b) is capable of being so perceived but is unintelligible to a person not conversant in a specific science; or
(c) is of such a nature it is not convenient to perceive and receive in evidence, in its original form,
a transcript, translation, conversion or transformation, as the case may be, of the same
which is intelligible and is capable of being perceived by the senses are admissible as
evidence.
How to produce Computer Evidence before Courts?
Section 7 of the Act provides provisions regarding Notices to have access to inspect evidence sought to be produced, machine, device, or computer, any records relating to the production of the evidence or the system used in such production, and the steps to be taken by the other party.
The court may presume the accuracy of any recording, reproduction or statement produced by, or by use of a machine, device or computer which is in common use where the court draws such presumption with respect to any recording, reproduction or statement, and in the absence of any evidence to the contrary.
What is the position of Computer Evidence in Sri Lanka under Electronic Transactions Act No.19 of 2006?
This Act has been introduced to recognise and facilitate the formation of contracts, the creation and exchange of data messages, electronic documents, electronic records, and other communications in electronic form in Sri Lanka.
If any information is contained in a data message, electronic document, electronic record or other communication made by a person who is dead or who by reason of his bodily or mental condition is unfit to attend as a witness ; or who is outside Sri Lanka and where reasonable steps have been taken to find such person and he cannot be found ; or who does not wish to give oral evidence through fear ; or who is prevented from so giving evidence, evidence relating to such information shall, if available, be admissible.
The Courts shall, unless the contrary is proved, presume the truth of information contained in a data message, or in any electronic document or electronic record or other communication and in the case of any data message, electronic document, electronic record or other communication made by a person, that it was made by the person who is purported to have made it and similarly, shall presume the genuineness of any electronic signature or distinctive identification mark therein.
The legislature has intended to accept electronic evidence in a light manner and it is clear that the burden of proof of the genuineness of such document has been virtually shifted from proposing party to the opposing party.
We have to keep in mind that there is no applicability of the Evidence (Special Provisions) Act in relation to any data message, electronic document, electronic record or other document to which the provisions of this Act applies.
What are the other related laws dealing with Computer Evidence?
Section 16 of the Payment Devices Frauds Act No.30 of 2006 deals with matters relating to evidence under the same Act. Accordingly, a certified copy of an entry relating to a payment device located in Sri Lanka or outside Sri Lanka, kept by an Issuer or acquirer in the ordinary course of business of such Issuer or acquirer, whether kept in written form or stored by electronic, magnetic, optical or any other means in an information system or computer or payment device shall be admissible in evidence in relation to a prosecution in respect of an offence under section 3 of the Act, and shall be prima facie evidence of the facts stated therein.
What are the salient features on Discovery of Computer Evidence?
Discovery of evidence is the most essential part to prove a case and various jurisdictions have faced common and different types of difficulties unique to relevant legal systems due to its own nature (of laws), procedures etc. When the subject matter is discussed with `Computer or electronic evidence', it will be a more complicated issue compared to discovery of non electronic evidence. With development of technology, evidence takes a new form. E-mail, chat room transcripts, databases, spreadsheets, web browser history files, information through system backup tapes have been replacing conventional paper documents.
Computer evidence may be stored in hidden files as there is a great deal of left over data stored on their disk drives of a computer. Some institutions may store their data at a distant server, different website etc.
Digital discovery tends to be voluminous, as electronic data are cheaper and easier to copy, archive and distribute. Electronic data, unlike their conventional counterparts, do not disappear easily and difficult to delete (or destroy) of an electronic document. Unlike a paper document, digital document has increased the number of locations where potentially discoverable documents may be found. Cost factor relating to digital discovery is a serious problem due to its nature.
Privacy issues will be another aspect under Digital discovery since courts can allow access to email, records of Web sites visited, transcripts of chat room discussions etc. to discover such evidence.
Standard of knowledge and competence of investigators and their ability to explain the relevance of electronic forensic analysing tools used for discovery of electronic evidence also might open doors for different level of acceptability of such evidence in Court trials. It is the duty of the Forensic experts to ensure that nothing has been added to or deleted from electronic evidence recovered from the scene of crime/place.
|
E-mail