CHALLENGES OF ELECTRONIC EVIDENCE

Authentication of Computer Produced Documents

Authentication is basically satisfying the court that the contents of the record have remained unchanged, the information in the record is derived from its purported source, whether human or machine, and that extraneous information such as the apparent date of the record is accurate. Section 84(4) of the Evidence Act 2011, provides that where it is desirable to give a statement in evidence by virtue of Section 84 of the Evidence Act 2011, a Certificate identifying the document containing the statement and describing the manner in which the document was produced, with the particulars of any device involved in the production of the document, signed by a person occupying a responsible position in relation to the operation of the electronic device, shall be primary and sufficient evidence of the matters stated in the Certificate authenticating computer generated documents.

Hearsay Evidence and Electronic Evidence

Generally, written or oral statement made by a person not called as a witness is hearsay and inadmissible, also a statement contained in a book, document or record of any kind which is to be tendered to prove the truth of the contents but which is not declared admissible under the evidence act is hearsay and inadmissible. However, electronic business records which include entries in books of accounts or electronic records regularly kept in the course of business and an entry in any public or other official books, register or record, including electronic record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, are admissible whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability. Section 41 is to the effect that statement made in the ordinary course of business is admissible when it consists of any entry or memorandum made by him in books, and electronic device kept in the ordinary course of business. This provision will allow for the admissibility of electronic evidence which were formerly inadmissible such as ATM records, emails, electronic bank records, etc. 

Integrity and Confidentiality Issues in Relation to Electronic Evidence

Since it is very easy to manipulate or tamper with information gotten electronically without the knowledge of the author, it is very important to protect the original electronic document. Electronic evidence may be edited and improved. It is easy to super impose images on Compact Discs and hard disks. Also, computers may be hacked and an intruder may unlawfully gain access to confidential and sensitive information. It should be noted that by virtue of section 84 (3) of the Evidence Act, where there is a network of computers used for the production of the electronic evidence, either operating together or in succession over a material time, such computers will be treated for the purposes of admissibility of computer generated evidence, as one. 

Electronic Signature and Proof of Execution of Document

An electronic signature will satisfy the legal requirement that a document must be signed where the electronic signature shows that a procedure was followed whereby the person that executed a symbol or followed some other security procedure for the purpose of verifying that an electronic signature was made to an electronic record, actually followed such an established procedure. There are no judicial pronouncements on this aspect of Electronic Evidence yet however, Section 93 (1) of the 2011 Evidence Act provides that “If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting”. Subsection (2) provides that “where a rule of evidence requires a signature, or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law or avoids those consequences.” Subsection (3) of Section 93 further states that “an electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction, to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person.”