Electronically generated evidence used in commercial litigation

electronic evidence

When documents or evidence in an electronic format is used as evidence in commercial litigation, it is crucial to ascertain whether the document is authentic, i.e. an unaltered original version of the electronic document or data message. The aforesaid is in place to address one important consideration – whether the evidence is admissible or not. If inadmissible, the court will not consider the evidence, which can have dire consequences for the party relying on it. If, on the other hand, the evidence is admissible, the next step is to establish the evidential weight thereof.

A few years ago, the Internet, cyberspace, information and communication technology and conduct in cyberspace were regarded as science fiction, but today this forms part of our daily dealings, whether for personal or business use.

Most societies function within a physical and electronic realm. The electronic realm revolves around the use and exchange of information and communication by way of electronic devices, such as computers and mobile phones.

The admissibility of documents from an electronic source (electronic evidence), whether emails, fax, SMS, or more recently, social media posts, are regulated by the Electronic Communications and Transactions Act (the ECTA). A common question about the legal admissibility of electronic evidence is, for example, if we scan paper documents and then reproduce them later, will these be acceptable to a court?

The International Organisation for Standardisation (ISO) developed ISO 15801, which has been adopted in South Africa in 2005 as “SANS 15801”, to provide some answers and a framework within which companies can operate and ensure that it’s confident that its records will meet the ECTA requirements of authenticity, reliability, and originality as mentioned above.  While the ECTA supplies guidelines regarding the process companies should follow, SANS 15801 provides details of best-practice processes to be put in place by means of six important elements which ought to be considered.

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