The development of technologies has fundamentally changed the way of keeping records: a significant number of contracts are concluded online; calculations, correspondence and all communication went "digital".
Anastasia Nikolenko and Ihor Selivakin, GOLAW lawyers, write about this.
These changes could not fail to be reflected in the administration of justice in Ukraine. The legislator introduced the concept of "electronic evidence": an email, voice or text message, or correspondence in a messenger can be used in court as evidence in a case.
This procedural institution requires careful attention, because in the event of a dispute, properly prepared electronic evidence can tip the scales of Themis in favor of the more convincing party.
WHAT EVIDENCE IS ELECTRONIC AND HOW TO SUBMIT THEM TO THE COURT?
Electronic evidence can be electronic documents, websites, text, multimedia and voice messages, metadata, databases and any other data in electronic form relevant to the subject 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 the original, an electronic copy, or a paper copy of the electronic evidence.
Submission of electronic evidence in the original
The original of an electronic document is an electronic copy of the document with mandatory details, including an 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 by another person or stored on several media, each of its electronic copies has the status of an 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 the information on the respective account or device on which it was created or received.
For metadata and databases, the original will be the file or group of files that contain the relevant metadata or database.
Submission of an electronic copy of an electronic proof
If an electronic copy of the electronic evidence is provided to the court, it must be certified by an electronic signature equivalent to a handwritten one. In turn, an electronic copy of written evidence is not considered electronic evidence (for example, it is a scanned copy of a document in written form).
Submission of a paper copy of the electronic proof
This is the most common form of submission of electronic evidence, which is used by parties in many legal disputes. Printouts of electronic evidence: web pages, correspondence in messengers and e-mail can be attached to the case materials. Before submission to the court, such copies must be certified according to the rules of the State Standard of Ukraine (currently, the national standard DSTU 4163:2020 "State unified system of documentation. Unified system of organizational and administrative documentation. Requirements for document preparation" is relevant).
It is important that in the case of providing the court with a copy of electronic evidence (in electronic or paper form), the parties to the case must note that they have the original, and also send copies of this evidence to other parties to the case.
In the absence of the original and on the condition that any of the parties to the case or the court casts doubt on the relevant evidence, it will not be taken into account during the adoption of the court decision.
As an example, we can cite case No. 264/949/19, in which a dispute arose between the parties regarding the illegal use of an intellectual property object. The plaintiff has provided screenshots of the defendant's website on which it believes the relevant infringement is taking place.
The defendant objected, stating that the website was not owned by the defendant; who is the owner of this site and who fills it with information is unknown, therefore such screenshots cannot be proper evidence that confirms the illegal use of a trademark.
Therefore, the defendant questioned the correspondence of the submitted paper copy of the original electronic evidence, in connection with which the appellate court had to examine the original of this evidence. The appellate court did not do this, which became the basis for canceling the decision of the appellate court and sending the case for a new trial.
An example of resolving legal disputes using screenshots of messages from a phone and tablet, printouts from Viber is also interesting. In case No. 753/10840/19, the Plaintiff submitted to the case files screenshots of such messages, which the courts recognized as proper and admissible evidence, which were examined by them in totality and which were given a legal assessment.
It is worth noting that it is not a violation of the norms of procedural law to not examine the original electronic evidence in the absence of reasonable doubts about the correspondence of the copy of the electronic evidence to its original (Decision of the Supreme Court of April 28, 2021 in case No. 234/7160/20 , Resolution of the Supreme Court of June 18, 2021 in case No. 234/8079/20 ).
HOW TO PREVENT LOSS OF ELECTRONIC EVIDENCE?
Electronic evidence is a separate means of proof, to which requirements are also made regarding their propriety, admissibility, reliability and sufficiency.
However, in the event of a dispute, the other party may change or delete certain information recorded or transmitted online. For example, pages and materials on the Internet, correspondence in messengers, etc. can be deleted at any time. To counteract this, there are the following mechanisms for recording the content of electronic evidence (this mechanism can also be used for messengers – those that have their own web version, such as, for example, Telegram):
The expert can be asked questions related to the content of web pages, the author of certain materials, etc., depending on the circumstances to be established in the case.
For example, conducting such an examination allows establishing the fact of placing content on the Internet as of a certain point in time to prove:
- dissemination of false information;
- illegal use of objects of intellectual property rights;
- fraudulent use of a domain name;
- illegal sale of counterfeit products;
- posting of content owned and/or authored by the interested person.
Usually, an expert's opinion is a strong piece of evidence when deciding a case. A forensic expert is a person who possesses special knowledge that is necessary for clarifying certain circumstances of the case and has been notified of criminal liability for giving a knowingly false opinion.
However, the long time it takes to produce a conclusion and the high cost of an expert's services are the factors that force the parties to the dispute to turn to other ways of recording information on the network.
2) Use of the conclusion of the Center of Competence of the Internet address space (hereinafter referred to as the Center)
The center can prepare a report based on the results of recording the content of a web page in the network as of a certain point in time and produce certificates for the owners of the web site. Based on practice, courts evaluate and take into account such reports and references when resolving disputes (as an example: Supreme Court rulings dated January 27, 2021 in case No. 753/13197/18 , dated January 13, 2021 in case No. 742/514/17 , dated 11/18/2020 in case No. 742/287/17 ).
It is worth noting the speed of producing the report (5 working days from the moment of payment), as well as the possibility of ordering and receiving the report online.
3) Use of Internet archiving resources ( www.web.archive.org )
This method of fixing is used to prove the presence or absence of changes to a particular page on the network.
The parties can independently record information from such a resource in the protocol. They can also be used by an expert when drawing up a conclusion, or by the Center when preparing a report.
As practice shows, courts take into account information from the specified resource. For example, in case No. 910/13940/18, the court expert referred to information from this site, which confirmed the change in the terms of providing banking services, which became one of the reasons for rejecting the claim.
4) Provision of evidence before filing a claim
The party to the dispute can also use the right to provide evidence to record its content – such a right is directly provided for by the procedural codes.
In a pretrial motion, 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 content.
However, courts do not always grant such requests. So, for example, the Leninsky District Court of Kharkiv refused to grant the relevant petition (Decision of the Leninsky District Court of Kharkiv dated June 4, 2021 in case No. 642/65/21 ), motivating such a refusal by the possibility of independently fixing the content of the pages with the protocol or the services of the relevant companies.
However, there are also positive court decisions for the applicants, in which the court both demands electronic evidence and satisfies the request for their provision through review (Decision of the Dnipro District Court of Kyiv dated August 25, 2020 in case No. 755/11468/20 ).
5) Independent collection and recording of electronic evidence by the disputing party
This method of fixing can be done in two ways. Thus, the content of electronic evidence can be recorded in the protocol by a lawyer who, by law, has the right to independently collect information that can be used as evidence.
In addition, the protocol for recording electronic evidence can also be drawn up with the signature of several witnesses who in the future will be able to confirm one or another fact specified in the protocol.
WHAT SHOULD A BUSINESS CONSIDER IN ITS ACTIVITIES?
Taking into account the existing practice, we suggest that you take into account the following tips in your record keeping:
- any electronic contract, official letter and other documents sent online should be signed by a qualified electronic signature of an authorized person;
This was also emphasized by the Supreme Court in its ruling dated March 16, 2020 in case No. 910/1162/19. Thus, a dispute arose between the two companies regarding the payment of goods supplied by the plaintiff to the defendant. The defendant objected to the delivery contract concluded with the plaintiff and his obligation to pay for the delivered goods. The plaintiff justified the conclusion of the contract by the fact that he sent a copy of the delivery contract to the defendant's email from his own email. The defendant, in turn, sent the plaintiff a scanned copy of the contract with a signature and seal via e-mail. To confirm this, the plaintiff submitted to the court screenshots of an e-mail with an image of the sent files and indicated the absence of the original contract, signed and sealed by both parties.
According to the result of the case consideration, the Supreme Court confirmed that such printouts of electronic correspondence are not adequate evidence of the conclusion of the specified contract between the parties and the actions by the parties aimed at the emergence and fulfillment of obligations under the contract.
The courts concluded that printouts of electronic correspondence provided by the plaintiff cannot be considered electronic documents (copies of electronic documents), as they do not meet the requirements of the Law of Ukraine "On Electronic Documents and Electronic Document Management" and are not appropriate evidence in the case.
The courts also established the absence of any evidence that the copies of the contract and invoice, e-mails, screenshots of which are available in the case file, were signed with the electronic signature of the person authorized to do so, which is a mandatory requisite of an 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 corrections and distortions.
- the authority of the signatory must be valid – confirmed by relevant documents, for example, the charter, regulations, job description, power of attorney, and/or official information from the relevant register;
- correspondence and exchange of electronic documents should be carried out from the official e-mail address or the one specified in the contract.
Please note: if you have more than one e-mail address, you should decide from which address correspondence will be conducted and specify it in the contract with the counterparty.
We recommend limiting the use of messengers in business communication: messages in them can be deleted for all communication participants, and personal messages can be edited at any time.
If it is impossible to avoid communication using messengers, the contract should specify which messenger will be used by the parties, as well as which phone number (login) the parties to the contract have, for example:
"The parties have agreed that all documents under this contract will be sent by authorized persons of the parties using the Telegram messenger. At the same time, the Supplier will use the username: __________ and phone: +38 (__)_________, and the Buyer will use the username: __________ and phone: + 38 (__)_________".
Electronic evidence is still a relatively new institution in the domestic judicial system, and judicial practice continues to develop.
Because unscrupulous counterparties can use, alter, or destroy unreliable electronic evidence, you should get serious about organizing your own electronic records now, taking into account the tips listed above.