THE LEGAL ADMISSIBILITY OF SOCIAL MEDIA EVIDENCE

   

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ABSTRACT
When we consider the function that a social media post may serve in a civil or criminal case, we can see how important social media posts may be. As previously said, social media postings might satisfy a person’s claim in court that would otherwise be difficult to show. The challenge with social media evidence is making sure there is enough available evidence to validate and uphold the posting to be what it asserts to be. The fundamental rule of admissibility of any evidence is its relevance to a given instance, and if this principle is applied to a case where social media is in question, then admissibility will no longer be an issue in a court of law.

INTRODUCTION

In today’s world, most of us use electronic communication to exchange commercial transactions such as banking, insurance, and telecommunications. There are several types of electronic evidence, such as website dates, messages exchanged on social networking websites like Facebook, Instagram, and instant messaging apps like WhatsApp, Telegram, and others, as well as via email, SMS/MMS, and others.

In India, investigative agencies, sometimes known as intelligence agencies and police forces, have recently begun generating communications made by individuals on Twitter, Facebook, and other social media sites. They do so under the authority of the Indian Evidence Act. During a press conference in 2016, Union Home Minister Rajnath Singh said that the government has prepared a blueprint for a social media campaign against the IS in order to effectively monitor the unknown side of the web, such as the Dark Web. Cyberspace refers to any method of communication that aims to link the globe via network and technological devices. [1]

IMPORTANT DEFINITIONS

An electronic record is defined in Section 2(1)(t) of the Information Technology Act of 2000 as data, record, or data created, picture or sound saved, received, or transferred in an electronic form or microfilm or computer-generated microfiche.

Section 3 of the Indian Evidence Act of 1872 defines evidence as all documents, including electronic data, produced for the court’s examination. All of these documents are regarded as documentary evidence.

It is apparent that electronic recordings submitted before the court will be regarded documentary evidence in this case. To be acceptable, such an electronic record must not have been tampered with or manipulated. Section 65A of the Indian Evidence Act, 1872 specifies that the contents of an electronic record may be disclosed in line with the conditions established in Section 65B, which can be summarised in the following bullet points:

  1. The evidence must be saved in the computer when it is used for storage on a regular basis, and it must be utilised by a person who is lawfully in possession of the computer.
  2. The evidence’s content must be supplied into the computer via routine usage or actions conducted by the computer.
  3. The computer must be completely functioning and in excellent working order; if not, it must be proven in court that the evidence has not been tampered with and is in presentable shape.
  4. The evidence must be presented in court exactly as it was retrieved during the system’s normal operation.

Electronic Evidence: An electronic record is defined in Section 2 (1)(t) of the Information Technology Act of 2000 as “data, record, or data created, picture or sound saved, received, or transferred in an electronic form or micro film or computer generated micro fiche” [2] In addition, Section 3 of the Indian Evidence Act states that evidence includes electronic records.

Secondary evidence is any data that is kept or transferred digitally as electronic or digital evidence. The evidential value of electronic documents is typically assessed under sections 65A and 65B of the Evidence Act of 1872.

The sections state that if the four conditions listed are met, any information contained in an electronic record that is printed on paper, stored, recorded, or copied in an optical media, and created by a computer is considered a document and is admissible in proceedings without any additional confirmation or production of the original, as evidence of any contacts of the original, or any faking of the original.

The four conditions alluded to above are:

  1. The computer output containing such information should have been supplied by the computer when the computer was consistently used to store or handle data for any activities habitually carried out during that period by the individual with legal control over the computer’s use.
  2. During that time, data of the type included in the electronic record was consistently input into the computer as part of the normal course of such exercises.
  3. The computer must function properly during the duration of the material piece. If the computer was not operating properly at the time, it should be noted that this had no effect on the electronic record or the accuracy of the contents.
  4. The data in the electronic record should be exactly as it was reproduced or generated from data supplied into the computer in the normal course of such activities.

SECTION 65(B) OF INDIAN EVIDENCE ACT:

Section 65(B) of the Indian Evidence Act was added by the Information Technology Act of 2000 to allow electronic evidence to be considered as legitimate evidence in a court of law. Advocates and judges see this part as the hardest topic to grasp. This part is regarded as the most challenging technological idea for advocates and judges, since it is seen through the lens of “Secondary Electronic Evidence.”. [3]

They compare the provisions of this section with secondary documentary evidence given right after Section 65(B) of Indian Evidence Act. The statute regarding validity of this section came in the month of October 2000. This section was first used by court in the case of Suhas Katti v. State of Tamil Nadu.[4]

Section 65(B) includes five sub-clauses where the very first one i.e. Section65(B)(1) sets a base for rest four sub-clauses.

Section 65(B)(1): This section begins with a Non-obstante clause that states, “Notwithstanding anything stated in this act.” This remark demonstrates that earlier parts of the act, namely Sections 62 through Section 65, are not considered in interpreting this section.

It further specifies that if the requirements set out in section 65(B)(2) are met, computer output can be regarded an original document in a court of law and accepted as evidence without additional verification.

Section 65(B)(2): This section contains certain conditions regarding admissibility of computer output as a valid evidence. These are:

  1. The information must be created by a person who regularly and legitimately utilises that computer resource.
  2. The information generated must be supplied into the computer on a regular basis.
  3. During the material period, the computer must be in functioning order; however, if it is not in working order for a brief length of time, this short break must not interfere with the information supplied into the computer.
  4. The data generated must be correct.

Section 65(B)(3): This section confirms the conditions mentioned in the previous section.

Section 65(B)(4): This section includes the list of contents that will be used to determine which certificate will be issued. Any human being in possession of the source from which such electronic record is created must sign this certificate. Such a person accepts full responsibility for ensuring that the information given in the form of an electronic record is truthful and authentic to the best of his or her knowledge.

Section 65(B)(5): This section specifies some scenarios in which technological faults might taint electronic evidence.

INSTAGRAM CHATS AND EVIDENCE

Courts are accepting social media content as evidence around the world now. In ‘Largent v. Reed [5], The complainant stated that a recent injury had made her life extremely difficult. However, the defendant presented to the court post-accident photographs of the plaintiff that she had put on her Facebook account, which indicated that she had gone to the gym and was feeling good enough to go about her regular activities. The plaintiff was ordered by the court to provide her Facebook login details for further inquiry. [6]

In some cases, electronic evidence can be altered or modified; thus, courts employ stringent procedures for determining the validity and trustworthiness of electronic evidence, such as conversations on social messaging platforms, chat engines, and e-mails. If there is any doubt regarding the authenticity of the evidence, the court might rule that it is inadmissible. Screenshots of conversations on internet messaging systems can be used to archive them. However, because the screenshots are kept as photographs, the validity of the photos is jeopardised because they may be readily tampered with. The burden of evidence, however, is on the side of the challenger.

Instagram conversations can be used as evidence under Section 65B of the Indian Evidence Act. In the preceding precedent, material exchanged on Instagram’s parent firm Facebook was provided, thus Instagram conversations can be submitted as evidence. However, the veracity of the screenshots of Instagram discussions may be called into question in court.

WHATSAPP MESSAGES AND EVIDENCE

Technology has become an essential part of our daily life. Throughout the history of humanity, we have seen how web-based services be used to commit crimes and other wrongdoings. Given that WhatsApp has become a verb, let’s talk about the appropriateness of WhatsApp Chats in a trial.



Employees of the company are increasingly using WhatsApp as a way of communication. WhatsApp is regarded as the finest reasonable informative stage for representatives for tight connection with partners and customers. As the use of online media platforms such as WhatsApp increased, the Court began to accept texts and images exchanged through these platforms as evidence in criminal and civil cases.

There are several specific rules that must be followed when referring to WhatsApp material as evidence in court. WhatsApp chats are considered an electronic record in Indian courts and are admissible as a traditional document.

For WhatsApp communications to be admissible as evidence, the following requirements must be met:

  • The receiver should have received the messages, i.e., double ticks in the context of WhatsApp.
  • The phone should be used on a regular basis. It should not be harmed.
  • The sender should intend to transmit such messages.

WhatsApp Chats: Primary or Secondary Evidence?

In Girwar Singh v. CBI [7], When electronic evidence was presented to the Court, a committee was formed to verify the validity of the material. The committee later discovered that the evidence was not the original or a replica of the original. The evidence was duplicated many times on various devices. As a result, the Delhi H.C. In that case, the electronic evidence was deemed inadmissible.

It should be noted here that the presenting of evidence reproduced from an original document is referred to as Secondary Evidence. Section 63 of the Indian Evidence Act of 1872 specifies when evidence is considered secondary. Section 62, on the other hand, defines Primary Evidence as a document brought in its original form for inspection in Court.

INDIAN JUDICIARY ON SOCIAL MEDIA EVIDENCE ADMISSIBILITY

In Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another [8], the Supreme Court has mentioned WhatsApp conversations as evidence, stating that “the WhatsApp messages, which are virtual verbal interactions, are a subject of evidence with regard to their meaning and substance to be established during the trial by evidence in chief and cross-examination.”

In Anvar P.V. v. P.K. Baseer & Ors [9] “the 3-judge bench comprising R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ of Supreme Court overruled the judgement delivered in State (NCT of Delhi) v. Navjot Sandhu [10] to the extent of deciding the evidentiality of secondary evidence in a court of law and applying the principle of “generalia specialibus non derogant” (special law always takes precedence over general law) has mandated the requirements mentioned in Section 65B of the Evidence Act and held that certificate is required in order to admit electronic evidence” but later in 2018, the Supreme Court reversed this decision in Shafhi Mohammed v. State of Himachal Pradesh [11], where this Hon’ble Court loosened the mandatory provision introduced in earlier ruling and declared that any electronic record submitted as evidence without fulfilling the criteria stipulated in Section 65B(4) (regarding certificate production) can be relied on can be depended on Sections 65A and 65B are also deemed to be additional in nature, inserted to help the code on the topic, and are procedural in character.

Again, in Arjun Panditrao Khotkar v. Kailash Kushanrao [12] the Supreme Court of India ruled that the requirement specified in Section 65B(4) of the Evidence Act (about the certificate to be submitted before the court) is required for electronic documents to be admissible.

In the case of Shamsudin Bin Mohd. Yosuf v. Suhaila binti sulaiman [13]the magistrate court ruled that, despite the fact that the majority of the contact between the parties took place via WhatsApp, there existed an oral legal agreement that was enforceable by law.

  In the case of Bhim Rathke v. Mr R.K. Sharma [14]presented before the Patiala House Court in New Delhi, the court denied a complainant’s request for summons service through email and WhatsApp. The court denied the application because the court system does not have the capability of affecting the service via electronic means. However, in rare unusual situations, the court may employ a specific electronic media for summons serving.

INTERNATIONAL CASES ON SOCIAL MEDIA EVIDENCE ADMISSIBILITY

In Romano v. Steelcase Inc. [15] (a September 2010 New York personal injury case), the Court dutifully granted defendants access to the plaintiff’s “current and former Facebook and Myspace profiles, as well as websites, including pages that have been deleted and include relevant content, even if the information was not previously publicly accessible.” This was allowed since her Facebook page showed her standing calmly in an image taken outside her house, despite the fact that she claimed to be wounded and confined to her bed. The Court then concluded that the complainant might utilise self-set privacy settings on a website as a defence. The main objective is for individuals to be able to communicate more about how they conduct their social life. As a result, the opposing party may be denied access to material that may help ensure a fair trial. The court reasoned that regardless of the privacy settings employed, protection is not an exemption.

 In Zimmerman v. Wels Market Inc. [16]another notable case regarding the admission of social media information in court is a personal injury claim. Based on the public information displayed on the plaintiff’s Facebook profile, it was deduced that there was individually owned materials that was relevant to the complaint. On his Facebook page, the plaintiff characterised his interests as “riding” and “bike stunts,” as well as recent photographs of the plaintiff with a black eye and his motorbike after a collision. The Court subsequently ruled in favour of the defendants, allowing them authority to undertake discovery and access to non-public sections of the plaintiff’s Facebook profile as well as his Myspace account. This was done to refute claims of long-term impairment to the plaintiff’s welfare and well-being. [17]

VULNERABILITIES OF MEDIA AS EVIDENCE

The major drivers of proof recording and legislative changes are our country’s digitization and the exponential expansion of technology. The process of recording electronic documentation has both ethical and societal problems. For most of us, our phones contain a plethora of information about various aspects of our life, and social media is where individuals express their sentiments and pointless daily activities. In recent years, the media has placed a larger focus on electronic data collecting. The most significant issue on which the media is seeking to rely further is the utilisation of knowledge acquired from social media and networks. Establishing a regulatory framework, addressing numerous legal concerns in multiple countries, and considering future challenges are all required. The following are the primary concerns:

  • The use of e-discovery and e-disclosure in court to acquire and generate information 
  • The legitimacy, admissibility, and reliability of electronic material filed in court
  • The use of social media and emoji’s in the presentation and application of visual information in court.
  • The accuracy of digital documents can be challenged
  • Identity Management Challenge: Who Is the Author of the Records? Courts seek the creator of the digital information used in evidence in a number of ways. The proponent must offer testimony on who the author is and if the letter, text, film, or photo was placed on a website.
  • Is the computer software that generated the different papers reliable? Was the computer’s performance as precise as it should’ve been?
  • Were the papers changed, altered, or deleted after they were created? Photographs and photos may be changed using a variety of Photoshop websites and graphic design tools, whereas hackers can alter websites, databases, and other electronic material. They generally conceal their tracks by tampering with audit log data.
  • Information on social media sites: Because of the evident infinite number of individuals that use social networking sites such as Facebook, Myspace, and LinkedIn, content has been created that is beyond the reach of any single person or organisation. Furthermore, courts usually apply a higher standard to the verification of information obtained through social networking sites because there are no limits on who can create a profile. Because anybody may create a social network profile anonymously, courts cannot always attribute a single message to the person who controls the site. It is difficult to determine who wrote the post since it can be done on a public computer, such as one at a library or a hotel.
  • Blurred the difference between Primary and Secondary Evidence:  The statute significantly blurs the boundary between primary and secondary kinds of evidence by integrating all sorts of computer proof under the scope of primary evidence. Because the data derived from computer-generated records is complicated and difficult to create in physical form, a provision has been established for it. As a consequence, if the word document is the original, a printout of the same might be considered as secondary evidence. It should be emphasised, however, that producing a word document in court without the use of printouts or CDs is very difficult.
  • Unjustly Prejudiced: The phrase prejudiced refers to a proclivity to convince based on past experiences rather than current facts. Proof that is harmful, damaging, or biased in favour of the cause without establishing any legitimate facts or enraging the judge without providing some important facts is frequently excluded from court proceedings. For example, a child’s picture wrapped around the victim’s neck.
  • Wastes time: Attorneys defending their clients frequently present testimony or witnesses in court that may waste the Court’s time; nevertheless, those witnesses or evidences are generally excluded from the proceedings. For example, it would be a waste of time for the Court if the advocate produced twenty different persons to demonstrate that the accused is a trustworthy individual.
  • Misleading: If the testimony displayed diverts the jury’s or judge’s attention away from the main issue or substance of the prosecution, it is considered false evidence and should be excluded from the trial. In a rape case, for example, a minor’s gender is irrelevant since the crucial truth to determine is whether or not the minor was raped, and it is irrelevant to know whose gender the minor was.
  • Hearsay evidence: Hearsay testimony is used when an individual is not there but has heard about an occurrence from someone else. Such evidence is inadmissible in court, and everyone would blame the other for rescuing or helping the accused to evade punishment. For example, if witness “A” states that another witness “B” stated that the defendant hit the victim with a stick, and the prosecution attempts to use the evidence to establish the defendant hit the victim, this is known as hearsay.
  • Character: The appellant party’s proof to demonstrate the defendant’s character contains some features that are excluded from the court proceedings until the defendant provides the character evidence first in the hearing.
  • Expert Testimony:  Expert testimony can be used in court only if it was provided by an expert rather than a layperson. A layperson’s testimony is not admissible in court.
  • Privileges: Any papers obtained under the attorney-client privilege, as well as any other self-incriminating material, would not be admitted by the Court. This type of evidence is classified and will lead the attorney to perjure himself, rendering it inadmissible in court.

CONCLUSION

Most commercial organisations have their meetings online, and the contents of such meetings are disseminated among the representatives using messaging platforms such as WhatsApp, Telegram, and others. One step at a time, India’s judicial system is also evolving into a technologically advanced structure. The Court of Law recognises Internet informative apps as acceptable evidence.

Since the admissibility of electronic evidence in court is still a problem, even after the twenty-year-old Information Technology Act entered into effect in the year 2000, we may expect some important advancements and revisions to close these gaps.

Evidence obtained from social media postings and communications may be quite useful in settling legal matters in court. Rhea Chakraborty’s investigative process is a recent example of this. Her social media profiles played a significant part in the Narcotics Control Bureau’s probe in Mumbai, Maharashtra (NCB). However, because social media data is easily manipulated and altered, the court must be aware that the evidence presented by the parties might be faked and manipulated. In addition, while gathering evidence, investigators must bear the idea of “right to privacy” in mind.

It’s a whole other ballgame when it comes to digital evidence. In contrast to traditional investigations, the investigator has no influence over Social Media or the Law. This can be a legal red flag since social media evidence, like conventional evidence, must be obtained in a controlled and rigorous forensic manner. This problem is exacerbated by the non-availability and scarcity of court-validated digital forensic tools for collecting and analyzing social media data.


[1] P. Sathish Kumar & Arya R, A Study on Electronic Evidence Act under Law of Evidence,120 IJPAM (2018).

[2] Section 2 (1)(t) of Information Technology Act, 2000

[3] [Defined under Indian Evidence Act

[4] Cc No. 4680 of 2004.

[5] Largent v. Reed, PICS Case No. 11-4463

[6] Andrew Arnold, Here’s How Social Media Can Be Used Against You In Court, Forbes (December 30, 2018, 02:27 PM), https://www.news18.com/news/india/whatsapp-messages-cannot-be-used-as-evidence-in-a-court-of-law-says-sc-report-3964916.html

[7] Girwar Singh v. CBI  2017 (5) ALJ 677

[8] Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another AIR 2020 SC (Civil) 738

[9]  Anvar P.V. v. P.K. Baseer & Ors , 2014 AIR SCW 5695

[10] State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005, Appeal (crl.)  373-375 of 2004

[11] Shafhi Mohammad vs The State of Himachal Pradesh on 30 January, 2018, Special Leave Petition (Crl.) No.2302 Of 2017

[12] Arjun Panditrao Khotkar v. Kailash Kushanrao, Civil Appeal Nos. 20825-20826 Of 2017

[13]  Shamsudin Bin Mohd. Yosuf v. Suhaila binti sulaiman [2017] MLJU 2236.

[14] Bhim Rathke v. Mr R.K. Sharma on 22 February, 2018 Cr. Revision No. 16/2018

[15] Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (2010)

[16] Zimmerman v. Weis Markets, Inc., PICS Case No. 11-0932 (2011).

[17]  Bradley v. State, 359 S.W.3d 912 (2012); Elonis v. United States, 192 L. Ed. 2d 1 (2015).

Author: Suvansh Majmudar, Amity Law School Noida

Editor: Kanishka VaishSenior Editor, LexLife India.

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