Sunday Times 2
“Online Legal Information for Judges and Lawyers in the Information Age”
View(s):The following is an edited version of the Justice J.F.A.Soza Memorial Oration 2017 delivered by President’s Counsel K. Kanag-Isvaran at the Sri Lanka Judges Institute on August 11.
Your Lordship the Chief Justice, Hon. Minister of Justice, Hon. Justices of the Supreme Court, Hon. President of the Court of Appeal, Hon. Justices of the Court of Appeal, Hon. Judges of the Civil Appellate, High Court, Hon Judges of the High Court of the Republic of Sri Lanka, and of the Provinces, Hon. Judges of the District Courts, Hon. Judges of the Magistrates Courts, Mr. Ruwan Fernando, in his capacity as the Director of the Sri Lanka Judges Institute, the Board of Governors of the Judges Institute, Mr. Harsha Soza, President’s Counsel, Distinguished Invitees, Ladies and Gentlemen, good afternoon.
It is a singular honour and privilege to me to be offered this opportunity to address so distinguished an assembly of the most eminent judicial minds of the Republic. The guardians of the portals of the rule of law.
Today’s function has a triple significance – firstly, it commemorates the memory of Justice J.F.A. Soza, unquestionably one of Sri Lanka’s great legal minds of recent times, remembered with affection and admiration for his contribution to the country’s jurisprudence – attested by his numerous judgments and legal writings, and his contribution to legal reform – he was instrumental in drafting the The Code of Criminal Procedure 1979.
Secondly, it marks the launch of the fourth volume of the Judges’ Journal. Thirdly, today also witnesses the landmark launch of the online legal database of the Sri Lanka Judges’ Institute – “SLJI NET”.
I am sure Justice Soza, who was also a Director of the Institute, and the progenitor of many cutting edge and frontier pushing innovations in field of judicial remedies, like mareva injunctions and Anton Pillar orders will be loudly applauding the Institute’s journey into the exciting world of legal cyberspace.
Joseph Francis Anthony Soza, born in 1917, educated at Maris Stella College, Negombo, after an illustrious academic and extra curricular achievement, crowned himself with two degrees from the University of London – the Bachelor of Arts, Degree and the Bachelor of Laws, Degree and had himself admitted as an Advocate of the Supreme Court of Ceylon in the year 1948. He joined the judiciary in 1957 as a Supernumerary Magistrate and progressed without blemish in his judicial career and with excellence, retiring as a Judge of the Supreme Court in the year 1984, a judicial career spanning 27 years.
Judges are often asked to rule on the admissibility of electronic evidence
Even after retirement he remained active, as the Editor-in-Chief of the Sri Lanka Law Reports, a Director of the Sri Lanka Judges Institute, Chairman of the Human Rights Task Force, and Chairman of the Sri Lanka Foundation. He was a much sought after Arbitrator in commercial arbitrations as well for several years.
In the year 1991 Justice Soza, as the first Director of the Judges’ Institute, launched the first volume of the ‘Judges’ Journal’, expressing the hope in his editorial that the Journal will “truly become the voice of the Judges in due course”.
Today it speaks for the fourth time. I wish it every success.
Justice Soza contributed a few articles himself to the Journal, one of which is the much cited article on “The Interim Injunction in Sri Lanka”. In that he deals
with mareva injunctions and Anton Pillar Orders, new common law instruments fashioned by the English judiciary to meet the exigencies of the times, Lord Denning being in its vanguard.
It is therefore a matter of great pride to the judiciary of Sri Lanka that Lord Denning himself having perused the Justice Soza’s article wrote him a letter in 1992 in which he had this to say – “I congratulate you on it… you have expounded the law clearly and accurately. I am much impressed…”.
Scholarship, clarity of thought and expression were Justice Soza’s forte.
It is therefore befitting that today’s milestone – the launch of the of the online legal database – SLJI NET – should coincide with the Justice Soza’s Memorial.
The online legal database is a leap into the future.
We are half way through the second decade of the twenty first century. We have well and truly entered the new millennium. The Industrial Revolution that began three centuries ago has given way for the industrialised world, to the Information age. The birth of the information age is earth shaking in terms of how we work, transmit, store and retrieve information.
The world is changing due to the rapid proliferation of electronic information and increasing interdependence amongst individuals, multi-national companies, and governments arising from a global market place. This presents novel and unique legal challenges that previously did not exist. These challenges compel us to
re-think deeply how we resolve legal conflicts.
Today litigation transcends geographical boundaries. Commercial globalisation has given rise to a complicated matrix of legal, technology and compliance requirements. This complex international interconnectivity has driven a
dramatic expansion in volume of data created and stored in an electronic format, commonly referred to as ‘Electronically Stored Information’.
The ease with which electronic information/data is created, replicated, transmitted and stored – unconstrained by traditional geographic borders- places profound stress on traditional legal notions of “custody and control”.
Laws made in the age before personal computers and the internet are now severely outdated.
Websites, social networks, email, text messaging, computer-generated or stored documents and the like constituting new communications technologies challenge evidentiary rules grounded in a more tangible former reality. Authentication of such evidence is perhaps the most difficult challenge to courts seeking to determine its admissibility.
Due to the enormous growth in electronic correspondence, electronic writings (known as e-evidence) have evolved into a fundamental pillar of communication in today’s society.
Electronic communications have revolutionized how the world does business, learns about news and shares news, and how it instantly engages with other actors across the globe. It is said that ninety one percent of today’s online adults use some form of electronic communication regularly in their everyday lives. No wonder then, that various forms of electronic evidence are increasingly being used in both civil and criminal litigation.
During trials, judges are often asked to rule on the admissibility of electronic evidence. How the court rules on questions of admissibility could substantially impact the outcome of a civil lawsuit or determine the difference between conviction or acquittal of a defendant.
As courts continue to grapple with this new electronic frontier it is important to stress that electronic evidence is subject to the same rules of evidence as paper documents. However, the unique nature of e-evidence, as well as the ease with which it can be manipulated or falsified, creates hurdles to admissibility not faced with other evidence.
In our law admissibility of electronic evidence is governed by the Evidence Ordinance and the Electronic Transactions Act No. 19 of 2006 as amended. But there are hardly any decisions by the superior courts, other than the one by Justice K.T. Chitrasiri that I know of, to guide one in the application and or interpretation of the provisions of the latter Act. Where then is guidance to be sought? Online legal database?
Because e-evidence is subject to manipulation and questions of authorship are often hotly disputed, the requirement to “authenticate” is usually the most difficult to overcome.
Let us look at some of the categories of electronic evidence with which some of the Judges of the original courts, especially in the criminal filed, might have encountered. Examples would include, – Website Data, Social Network Communications and Postings, Email, Text Messages, and Computer Stored/Generated Documents and the like.
According to newspaper reports the Bond Commission is reputedly dealing with thousands of pages of text messages. All these pose unique problems and challenges for proper authentication and therefore deserves independent consideration.
Information appearing on private, corporate and government websites is often proffered as evidence in litigation. Printouts of web pages will be required to be
authenticated as accurately reflecting the content and image of a specific web page on the computer.
But private websites are not self-authenticating and therefore require additional proof of the source of the posting or the process by which it was generated. Perhaps a webmaster might be required to establish that a particular file, of identifiable content, was placed on the website at a specific time. This may be done through direct testimony or through documentation, which may be generated automatically by the software of the web server.
In jurisdictions elsewhere the most common method of authenticating website data is to have a competent witness testify that he typed in the URL of the website; that he logged onto the site and viewed what was there; and that the exhibit (printout) fairly and accurately reflects what the witness saw. This is of course no different than that required to authenticate a photograph or other demonstrative exhibit.
Email and text message evidence also raises novel authentication issues. The general principles of admissibility are essentially the same since text messages are a distinctive type of electronic evidence, namely, the use of a cell phone to send personalized electronic communications. Text messages sent between cell phone users are treated the same as email for purposes of authentication.
Typically such messages are admitted on the basis of identifying the author who texted the proffered message. However, mere ownership of the phone that originated the message is not sufficient. As in authentication of email, authorship can be determined by the circumstances surrounding the exchange of messages; their contents; who had the background knowledge to send the message; and whether the parties conventionally communicated by text message and the like.
It appears that like email and social media, text messages also have certain self-authenticating features. As we know, email messages are marked with the sender’s email address, text messages are marked with the sender’s cell phone number, and Facebook messages are marked with a user name and profile picture. But given that such messages could be generated by a third party under the guise of the named sender, the majority of jurisdictions have not equated evidence of these account user names or numbers with self-authentication. Likewise even though text messages are intrinsic to the cell phones in which they are stored, cellular telephones are not always exclusively used by the person to whom the phone number is assigned.
Consequently such indicia can only be used as circumstantial evidence of authenticity to be considered, along with other circumstantial evidence, in the totality of the circumstances.
Online search of other jurisdictions also show that certain basic characteristics are reckoned in determining whether text message evidence has been properly authenticated. For instance, these will include an examination of the sequential consistency with another text message sent by the alleged author (based on the text message number); the author’s awareness, shown through the text message, of details of the alleged author’s conduct; inclusion in the text message of similar requests that the alleged author made by phone, email, or other media during the time period; and the text message’s reference to the author by the alleged author’s nickname and the like.
This of course throws up another rule of evidence you might well re-call. The “Best Evidence Rule”.
The best evidence rule applies when a party wants to admit as evidence the contents of a document at trial, but the original document is not available. The party must therefore provide an acceptable excuse for its non-production. If the
document itself is not available, and the court finds the excuse provided acceptable, then the party is allowed to use secondary evidence to prove the contents of the document and have it as admissible evidence.
A recurring factual in scenario in e-evidence involves situations where copied or transcribed text messages are sought to be led in evidence, only to realize thereafter that the texts have been purged by the carrier. Transcripts made by law enforcement officers at the time the cell phone is seized are often proffered as evidence of the messages and must be authenticated as an accurate transcription. Such transcriptions of text messages have been held not to violate the Best Evidence Rule if the proponent satisfies that originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. Guidance on these matters of evidence have necessarily to be culled from decisions obtained from online legal databases and applied locally as persuasive authorities and or arguments.
Take for example computer stored documents.
Computer-generated material is the product of the machine itself (not a person) operating according to a program. When a computer is simply used as a typewriter, computer-stored documents may be authenticated by a percipient witness or by distinctive characteristics that establish a connection to a particular person. The mere presence of a document in a computer file will constitute some indication of a connection with the person or persons having ordinary access to that file.
The process of authentication may also involve a description of the system or process to produce a particular result, and evidence showing that the process or system produces an accurate result. If the computer is performing more complex manipulations a more elaborate foundation may be required. Testimony about the computer equipment, the hardware and software, the competency of the
operators, and the procedures for inputting data and retrieving the output may be necessary, particularly if these elements are challenged. Authenticity may also depend on the accuracy of the process that generates the computer documents.
Then there enters the Advocates’ bugbear – hearsay. Even after properly authenticating an e-evidence exhibit, there is a difference between computer-stored and computer-generated documents/statements. Computer-stored documents are entirely statements by persons and, if offered to prove their truth, can be considered hearsay. But computer-generated materials are not statements by persons, but rather are the product of the machine itself operating according to a program. So they do not fit the definition of “hearsay.” A point worth remembering.
All these are challenges confronting lawyers and Judges in the information age.
Let me turn to another area of cutting edge technology and its use as evidence in court proceedings.
Recently, I had occasion to use Google maps in a fundamental rights application to demonstrate what was alleged by the Petitioners to be an encroachment into a reserved forest by unauthorized persons – an act declared by law to be illegal. Nobody objected to it. But the question is, was it admissible as evidence?
Google maps are the product of the information age. As indeed Wikipedia. They are sources of information and factual data available on the Internet. Are they admissible in a court of law? How do you prove their authenticity ? Or should you be permitted to call in aid other principles from the law of evidence? Can, for instance, judicial notice be taken of them? Or rather ought not judicial notice be taken of them?
The Evidence Ordinance section 56 says “No fact of which the court will take judicial notice need be proved”.
Let us visit the fundamental rights jurisdiction again. Very often in school admission cases where distances from a school matter cannot Google mapping technology which is admittedly an accurate measure of distances be accepted as a readily provable fact? Cannot the judge take judicial notice of this readily provable fact?
In several jurisdictions computers are a common sight in courtrooms. Judges sit behind screens. Laptops and tablets are available in court to counsel. Answers to factual questions that arise in court are now just one search away. Can information sources from government websites, mapping services or official reporting agencies, including reports of cases in the SLJI NET website admissible under the judicial notice doctrine?
This is an important issue to be addressed going forward – and will impact vastly on delivery of justice and management of judicial time.
The ever-evolving technological medium identifying websites and information sources is bound to expand in the coming decades. Elsewhere, if not in Sri Lanka at present, judges, lawyers and litigants are already relying on search engines to find facts, investigate witnesses, and prepare their cases before trial. Jurors have taken to researching through the Internet, and judges are resolving questions through independent Internet research.
What we must be looking at here is a new framework to be designed to organize and categorise the potential information sources. The boundless avenues for fact finding presented by the Internet’s vast repository of information requires us to look at sweeping away evidentiary hurdles that might frustrate efforts to bring
information obtained on the internet into the court room. We must revisit evidentiary rules which make little sense when applied to facts gleaned online.
I believe that evidentiary hurdle to the admission of online sources based on the hearsay rule can be swept away by taking judicial notice of information contained on pertinent websites which can be considered to be extremely reliable, highly relevant and unobjectionable. Judicial notice provides a sensible path through this legal obstacle course.
I ask why not, when we happily rely on the information in our daily lives when we drive around using the Google maps, where ever in the world !
I must therefore commend to the members of the Judges’ Institute to lead the way in formulating a framework for the application of judicial notice in the information age and help realise the Justice Soza’s dream of becoming the voice of the Judges in the cause of justice in the information age. It will help increase predictability and consistency in judicial rulings, because information technology will continue to revolutionize how the world does business and how individuals instantly engage with other across the globe.
E-evidence is undeniably a critical new evidentiary frontier which has left both judges and attorneys struggling to understand how the admissibility of this new information fits into existing legal paradigms. Despite this uncertainty, one thing is clear, it is that the use of e-evidence will continue to play an ever-increasing critical role in both civil and criminal litigation. Because e-evidence can have a substantial impact at trial, it is vitally important for attorneys and the court to stay in touch with ongoing legal and technological developments.
There is no better way to do it than go online, and innovate new paradigms to meet new challenges in the delivery of justice.
It is the duty of any judicial system to prepare and meet these challenges. And at the same time it is the duty of the Judiciary to take advantage of the new opportunities offered by information technology to offer a professionally excellent service to the community.
Nothing less is expected of you.
Thank you.