Electronic evidence: instructions for use

This is bound to be reflected on Ukrainian justice procedures. The legislator has introduced the concept of “electronic evidence”: an email, voice or text message or messenger correspondence can be used in court as evidence in the case.

This procedural institution requires careful attention because, in the event of a dispute, properly executed electronic evidence can tip the scales of justice in favour of the more convincing party.

What evidence is electronic and how to present electronic evidence in court?

Electronic evidence may include electronic documents, websites, text, multimedia and voice messages, metadata, databases, and any other data in electronic form relating to the subject matter of the dispute.

In order for digital data to meet the legal requirements for electronic evidence, it can be provided to the court in one of the following ways: in its original form, as an electronic or a paper copy of the electronic evidence.

• Submission of electronic evidence in the original

The original electronic document is an electronic copy of the document with mandatory details, including the electronic signature of the author or a signature equivalent to a handwritten signature in accordance with the Law of Ukraine “On Electronic Trust Services”.

If such a document was sent through another person or stored on several devices, each of its electronic copies has the status of the original.

For websites, the original will be a page on the Internet that can be accessed using a web browser.

The original text, multimedia, and voice messages are considered to be information on the account or device on which they were created or received.

For metadata and databases, the original is the file or group of files that contain the relevant metadata or databases.

• Submission of an electronic copy of electronic evidence

If the court is provided with an electronic copy of electronic evidence, it must be certified by an electronic signature, equivalent to a handwritten. In turn, an electronic copy of written evidence equivalent is not considered electronic evidence (as an example, it is a scanned copy of a document in writing).

• Submission of a paper copy of electronic evidence

This is the most common form of electronic evidence used by parties in many court proceedings. The case file may include printouts of electronic evidence: web pages, correspondence in messengers, and e-mail. Such copies must be certified in accordance with the rules of the State Standard of Ukraine [1] before being submitted to the court.

It is important that if a copy of electronic evidence (whether soft or hard) is provided to the court, the parties to the case should indicate that they possess the original electronic evidence and also send copies of this evidence to the other parties to the case.

If the original electronic evidence cannot be provided and if any party to the case or the court questions the relevant evidence, it will not be taken into account in making a judicial decision.

As an example, we can refer to case No. 264/949/19, in which a dispute arose between the parties over the unlawful use of an intellectual property object. The plaintiff provided screenshots from the defendant’s website, where it believed the disputable breach had occurred.

The defendant objected, stating that the website did not belong to the defendant; it was not clear who owned the site or who posted information on it, so such screenshots could not be the proper evidence of illegal trademark use.

Therefore, the defendant questioned the conformity of the submitted paper copy with the original electronic evidence, in connection with which the Court of Appeal had to examine the original of this evidence. The Court of Appeal failed to do so, which was a ground to cancellation of the Court of Appeal’s judgment and remitting the case for reconsideration.

There is an interesting example of resolving disputes using screenshots of messages from phone and tablet, printouts from Viber. In case No. 753/10840/19 [2], the plaintiff submitted screenshots of such communications, which the courts found to be the relevant and admissible evidence. They examined all of it together and assessed from a legal standpoint.

It should be noted that it is not a violation of procedural law not to examine the original of electronic evidence unless there is a reasonable doubt as to whether the copy of electronic evidence corresponds to its original [3].

How to prevent the loss of electronic evidence?

Electronic evidence is a separate means of proof, which is also required to be relevant, admissible, reliable, and sufficient.

However, in the event of a dispute, the other party may change or delete certain information that has been recorded or transmitted online. For example, pages and content on the Internet, messenger correspondence, etc. can be deleted at any given moment. To counteract this, there are the following mechanisms for recording the content of electronic evidence [4]:

1) Conducting an expertise

The expert’s conclusion may be required about the content of web pages, the author of certain materials, etc., depending on the circumstances of the given case.

For example, such expertise can establish the fact that content was posted on the Internet at a given point in time to prove:

• dissemination of inaccurate information;
• illegal use of intellectual property rights;
• unfair use of a domain name;
• illegal sale of counterfeit products;
• placement of content owned and/or authored by an interested person.

Usually, the expert conclusion is a strong proof in resolving the case. A forensic expert is a person who has special knowledge that is necessary to clarify certain circumstances of the case and has been informed of criminal liability for giving a knowingly false statement.

However, the long time of drawing the expert conclusion and the high cost of the services is the factor that forces parties to the dispute to turn to other ways of recording information online.

2) Using the conclusion of the Center of Competence of the Internet address space (hereinafter referred to as the Center)

The Center can produce a report on the results of a web page’s content record at a certain point in time and prepare information on the owners of the website. Based on practice, courts evaluate and take into account such reports and references when resolving disputes [5].

The speed of producing the report (5 working days from the date of payment) and the option of ordering and receiving the report online should be noted.

3) Using Internet archiving resources (www.web.archive.org)

This recording method is used to confirm whether a page has been changed online or not.

The parties may record information from such a resource in the minutes. It can also be used by an expert in drawing up a conclusion, or by the Center in producing a report.

As practice shows, courts take into account the information from this resource. For example, in case No. 910/13940/18, a forensic expert referred to information from this site, confirming the change in the terms of banking services, which was one of the grounds for dismissal.

4) Providing evidence before filing a statement of claim

A party to the dispute may also exercise the right to provide evidence to record its content – such a right is expressly provided for in procedural codes.

In a motion to reclaim evidence, filed prior to a lawsuit submission, a party may ask the court to review certain electronic evidence, such as a web page, before a potential defendant in the case changes or deletes its contents.

However, such requests are not always granted by the courts. For example, the Leninskyi District Court of Kharkiv City refused to grant the request [6] on the grounds that it was possible to independently record the contents of the pages with the minutes or by using the services of relevant companies.

There are, however, court decisions in which the court both requires electronic evidence and grants the request to secure it by inspection [7] that are positive for the applicants.

Independent collection and recording of electronic evidence by a party to the dispute

This method of recording can be done in two ways. Thus, the content of electronic evidence can be recorded in the minutes by a lawyer, who by law has the right to independently collect information that can be used as evidence.

In addition, the electronic evidence minutes can also be drawn up under the signature of several witnesses, who will be able to subsequently confirm a fact stated in the minutes.

What should a business consider in its activities?

Given the current practice, we suggest that you consider the following tips in your records management now:

1) any electronic contract, official letter, and other documents sent online should be signed by a qualified electronic signature of the authorized person;

This was also emphasized by the Supreme Court in its judgment of 16 March 2020 in case No. 910/1162/19. Thus, a dispute arose between two companies over the payment of the goods supplied by the plaintiff to the defendant. The defendant objected to the supply contract concluded with the plaintiff and their obligation to pay for the goods supplied. The plaintiff justified the conclusion of the contract by sending a copy of the supply contract to the defendant’s e-mail address from their own e-mail account. The defendant, in turn, sent the plaintiff a scanned copy of the contract, signed and stamped, via e-mail. Proving this, the plaintiff provided the court with screenshots of the e-mail with the image of the sent files and noted the absence of the original contract, signed and sealed by both parties.

Following the hearing, the Supreme Court confirmed that such printouts of electronic correspondence do not properly testify to the conclusion of the contract between the parties, and their actions aimed at the emergence and fulfillment of obligations under the contract.

The courts concluded that the plaintiff’s printouts of electronic correspondence could not be considered electronic documents (copies of electronic documents) because they did not meet the requirements of the Law of Ukraine “On Electronic Documents and Electronic Document Management” and were not relevant evidence in the case.

The courts also found no evidence that copies of the contract and the invoice, e-mails, screenshots of which are available in the case file, were signed by the electronic signature of the authorized person, which is a mandatory detail of the electronic document. Such circumstances make it impossible to identify the sender of the message, and the content of such a document is not protected from making corrections and distortions.

2) the authority of the signatory must be valid – confirmed by the corresponding documents, such as statutes, regulations, job descriptions, instructions, and/or official information from the relevant register;

3) correspondence and exchange of electronic documents should be carried out from the official e-mail address, or the e-mail address specified in the contract.

Please note: if you have more than one e-mail address, you should determine from which address the correspondence will be conducted and indicate it in the contract with the contractor.

We recommend that you limit the use of messengers in business communication: messages in them can be deleted for all participants, and personal messages can be edited at any time.

If it is impossible to avoid communication via messengers, the contract should specify which messenger will be used by the parties, as well as what phone number (login) the parties to the contract have, for example:

“The Parties have agreed that all documents under this contract shall be sent by authorized persons of the Parties using the Telegram messenger. In this case, the Supplier will use the username: __________ and phone number: +38 (__) _________, and the Buyer will use the username: __________ and phone number: + 38 (__) _________ “.

Conclusions

Electronic evidence is still a fairly new institution in the domestic judicial procedure, and it is definitely still evolving.

Since unfair contractors may use, modify or destroy inaccurate electronic evidence, you should already be serious about organising your own electronic records management, taking the abovementioned advice into consideration.

---

[1] The current national standard DSTU 4163: 2020: “State unified documentation system. A unified system of organizational and administrative documentation. Requirements for preparation of documents”

[2] Judgment by the Supreme Court of 13 July 2020 in case No. 753/10840/19

[3] Judgment by the Supreme Court of 28 April 2021 in case No. 234/7160/20, Judgment by the Supreme Court of 18 June 2021 in case No. 234/8079/20

[4] This mechanism can also be used for messengers – having their own web version, such as Telegram.

[5] As an example: judgments by the Supreme Court of 27.01.2021 in case No. 753/13197/18, of 13.01.2021 in case No. 742/514/17, of 18.11.2020 in case No. 742/287/17

[6] Ruling of Leninskyi District Court of Kharkiv City of 4 June 2021 in case No. 642/65/21

[7] Ruling of Dniprovskyi District Court of Kyiv of 25 August 2020 in the case No. 755/11468/20