WayBack Machine Move Time Backwards- can we prove it in Court?

The admissibility of website content, pages is a challenging task because of global nature of the internet and also due to the dynamic nature of websites. It becomes more complex, if the author of the website does not authenticate the content before the court. The party intend to prove the content fails, in case, the content does not exists anymore as either the website pages have been removed or website is shut down which is normally the case in respect of internet crimes or where the defending party intend to rebut the evidence.

The only option to prove such evidence would be, to produce the website content/web pages by the party who intend to prove from the content downloaded by them or from the internet archive websites. It is difficult to prove the downloaded data as the party, who downloaded the data, is neither the author nor can prove the authenticity and further being an interested party, its veracity also becomes unreliable. The only option left is to prove from the data archived by the website on the internet such as www.archive.org  .

Document archiving is a process of moving documents in such a storage, so that they can be kept for future use. Archived files are still important to the organization and may be needed for future reference or must be retained for regulatory compliance.

The Wayback Machine is a digital archive of the World Wide Web and other information on the Internet. Wayback Machine has catalogued more than 380 billion web pages from as far back as 1996, so there’s a good chance that the website, you want to see can be found on Wayback Machine. This service is provided free of charge by the Internet Archive to give access to a digital library of internet sites and other cultural artefacts in digital form. The archived data was compiled using software programs known as “crawlers” that surf the World Wide Web and automatically store copies of website files, preserving them as they exist at the point of time of capture. The benefit of such archived records is that if a URL is available, the user may conduct a search and find a list of available dates, select one, and then begin viewing and browsing an archived version of the website. Users can type in a URL and select a date range, permitting them to browse the older version of the given site that was posted during the specified period.

The first ever use witnessed of Wayback Machine was back in 2003 between Playboy Enterprises and Mario Cavalluzzo, who brought up a trademark infringement suit. During defence attorney’s cross-examination, Cindy Johnson, used this program to obtain snapshot of how the page had appeared back in 1998.

Use of information and documents from the Wayback Machine Internet Archive as evidence in legal proceedings implicates many different evidentiary issues including authentication of such evidences, the hearsay rule etc. The Wayback Machine captures the data of other authors and not the party to the documents or content and as such, these documents come within the meaning of hearsay evidence in most of the jurisdictions of the world and not admissible as evidence. The second challenge comes to the authenticity of such data which can be bridged if the Wayback Machine comes into witness box and prove the process of capturing of data and its chain of custody till the production in the court.

In the Federal Court of Australia, the web pages from the Wayback Machine has already been held to be hearsay evidence by Justice Perram in the matter of Voxson Pty ltd Vs Telstra Corporation Limited (No 10) [2018] FCA 376 and it was quoted by the Justice Perram that ‘all roads leads to Rome’ and found that the archived web pages cannot be brought into any of the exceptions which allow the admissibility of hearsay evidence under the Evidence Act.

In the recent decision of Dyno Nobel Inc Vs Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552, Justice Burley also held that web pages are hearsay evidence but was of the view that it falls within the exceptional circumstances and admit the evidence for the limited purpose of proving the availability of website and content of the particular web pages. In this case, Dyno sought to prove the web pages of Orica website i.e. ‘ikonsystem.com’ and in response Orica asserted that it was unable to find records of the websites at the relevant date but did not refuted the content of the web pages. Justice Burley drew the inference from the fact that Orica had not contested the accuracy of material and the material was acquired by the Wayback Machine in contemporaneous manner contributing to the accuracy of such records.

In the judgment of Kundan Singh Vs The State of Delhi [MANU/DE/3674/2015], the Division Bench of Delhi High Court while interpreting the hearsay nature of electronic documents observed that such challenges can be categorized into two categories ‘factum of statement’ and ‘truth of statement’. The court held that considering the process, source and manner of production, the factum of statement i.e. production of such information can be proved by a witness producing primary or secondary evidence. It implies that if the Wayback Machine comes into witness box and prove the process of production, creation of such documents, then such documents can be proved, however, the ‘truth of statement’ i.e. whether the content is correct or not,  cannot be proved and have to be decided by the court by interpreting various factors relating to the evidence. The court held that the presumption of correctness of such documents can be drawn depending upon how the document is generated, its storage mechanism, access control and the chain of custody.

In case of archived documents, another bigger challenge is that the information is not generated by the Wayback Machine but only captured and as such, the Wayback Machine cannot be the sole author. There is another principle of interpretation for the admissibility of the document which seems to have been followed in the judgment of Dyno Noble case, that if the original evidence is into the possession of the opposite party, it can be admitted as a secondary evidence, if the document is proved and in such a case, the veracity of the document depends upon the acceptance or denial of the content by the party in whose possession the original was. In case of Dyno, the opposite party Orica did not challenge the accuracy of the content of the web pages, the conduct from which, the inference was drawn by the court as to the finding that the web pages are the accurate representation. Under the Indian Law, a similar preposition can be drawn by the court from the conduct of the party in possession of original as the burden shift to the party within the meaning of Section 65(b) of the Evidence Act. Further, as laid down by the Supreme Court of India in the matter of Shafhi Mohammad Vs The State of Himachal Pradesh [MANU/SCOR/12985/2018], no certificate U/s 65B would be required as the Wayback Machine is not into the possession of original.

In the emerging digital space, where the technology has become a challenge, when it comes to proving the electronic data as manipulating the evidence is quite easy but at the same time, new technology if properly presented, explained and laws are interpreted in terms of dynamically changing technologies, the proving of the authenticity and admissibility of the documents would rather be easy as far as the secondary documents are concerned. Only in the electronic world as compared to the physical world, more reliable procedures exist to authenticate the electronic record such as hash value, digital signature etc. exist.

 

Neeraj 
on 15 October 2019
Published in Others
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