I recently read a case that highlighted the challenges brought about by increased digitisation.
A litigant in a dispute objected to the production of certain evidence in court, arguing that his digital signature affixed on some of the documents had not been authorised. He therefore raised an objection on the legitimacy of the documents produced.
The increased use of technology also raises the risk associated with legitimacy and accuracy of documents and evidence. It is easier for an unauthorised person to falsify signatures or doctor evidence than it was before.
Disproving the authenticity of such evidence can be challenging. It is general law that one who alleges must prove meaning that if one alleges that a document is fake then he must also be the one to prove it. The law was amended in 2020 to allow for recognition of digital signatures in documents.
In a movie I watched recently, two advocates were competing for the prestigious partner position in a law firm. One of the associates resorted to using sabotage and underhand tactics to taint her competitor’s image so that she would look bad.
One of the tactics she used was to illegally access her competitor’s office and laptop from where she sent bad e-mails to clients using her competitor’s e-mail address. The innocent associate had not logged out of her e-mail address and therefore it was easy for a malicious person to access the same.
The result was that the firm lost business as clients lost confidence. The innocent associate was then suspended pending investigations.
How was the innocent associate to prove that she was not the one who had sent the e-mails?
Here are some tips on how a business can minimise such risks. First, train staff members on data privacy and data protection. There are organisational and technological measures a business can take to minimise such risks.
One of the recommended data privacy measures that staff are advised to implement, is to log off from their e-mails and laptops whenever they are not using them. In the case above, the innocent associate would have saved herself and her law firm a lot of embarrassment by simply logging out of her e-mails and laptop.
These type of measures are called organisational measures. They include the procedures, policies and practices that businesses employ to secure data privacy.
In the case above, a litigant denied that he had given authorisation for use of his digital signature. How will the court determine the legitimacy and accuracy of these claims?
Due to increase in technology use, a lot of evidence given in court is classified as digital or electronic evidence. The Evidence Act has provisions on how this evidence shall be produced. However, the provisions may not be sufficient when it comes to determining the legitimacy or accuracy of digital evidence.
Evidence law generally provides that for evidence to be relied upon it must be relevant, reliable and accurate.
It may be time for the legal professionals to collaborate with technology experts when it comes to producing digital evidence in court. The experts are well placed to determine issues of accuracy and legitimacy of digital evidence.
Technology standards place a very high threshold on how digital information is handled.
ISO/IEC/27037 gives a standard on identification, collection, acquisition and preservation of digital evidence. This is a standard that can be applied to ensure that evidence relied upon is also accurate so as to improve chances of admissibility.
Ms Mputhia is the founder of C Mputhia Advocates. Email: [email protected]
