Electronic evidence in trials includes documents in electronic format, emails, messages via electronic messaging channels, social networks, audio and video recordings, and other electronic media.
Additionally, it is important to highlight that jurisprudence recognizes the nature of documentary evidence in electronic documents , including emails and other electronic media, as long as their authenticity is proven and they are provided in accordance with the provisions of current doctrine and regulations.
However, the image and sound recordings played at the trial are not considered documentary evidence , unlike emails, which have been recognized as such. In addition, it is noted that the electronic signature has the same legal value as the handwritten signature in relation to data recorded on paper.
Advantages and disadvantages of electronic evidence in trials
Electronic evidence in trials finds both arguments in its favor and against it, and, at an exemplary level.
As for the advantages it provides:
- Technological progress has meant that many documents are materialised and presented in court through new electronic media. This should not exclude their nature as documentary evidence, since the necessary adaptations can be made, such as proof of authentication. This is how the jurisprudence remains: Judgment of the High Court of Justice of Madrid, Social Chamber, of March 9, 2023, November 10, 2022, October 31, 2023 and October 20, 2023.
- The case law recognises a broad concept of document, which includes electronic documents. This implies that emails can be considered as documentary evidence , as long as the authenticity requirements are met: Judgment of the Superior Court of Justice of the Valencian Community, Social, of February 4, 2023, Judgment of the Superior Court of Justice of the Region of Murcia, Social, of September 26, 2023, Judgment of the Superior Court of Justice of the Balearic Islands, Social, of July 12, 2023.
- Electronic evidence, such as emails, is subject to a free evaluation system, in which the rule of sound criticism is applied. This allows the veracity and relevance of the evidence to be assessed in each specific case: Judgment of the High Court of Justice of Catalonia, Social, of May 23, 2023 and July 6, 2023.
As for the drawbacks it brings with it:
- The Electronic Signature Law requires an electronic signature in order to consider an electronic document as documentary evidence . If this requirement is not met, as in the case of emails, it cannot be considered as valid documentary evidence: Judgment of the Social Court of Ciudad Real, No. 3, of April 28, 2023, Judgment of the Social Court, Puerto del Rosario, No. 4, of September 19, 2023, Judgment of the Superior Court of Justice of Catalonia, Social, of September 27, 2023, Judgment of the Superior Court of Justice of Castilla y León, Burgos, Social, of June 1, 2023 and Judgment of the Superior Court of Justice of the Canary Islands, Las Palmas, Social, of November 8, 2022.
- Electronic evidence, such as WhatsApp messages, is not considered documentary evidence in the strict sense . These means of evidence are subject to a free assessment system, but do not enjoy the same review effectiveness as traditional documentary evidence: Judgment of the Superior Court of Justice of Catalonia, Social, of May 23, 2023.
- Although case law recognises the probative value of electronic documents, such as emails, the lack of specific regulation in the Civil Procedure Law and in the Electronic Signature Law generates uncertainty and difficulties in their admission and assessment in trials: Judgment of the Superior Court of Justice of Galicia, Social, of September 18, 2023 and Judgment of the Superior Court of Justice of Catalonia, Social, of May 16, 2023.
Proposal and practice of digital evidence
The Supreme Court, 1066/2019, of September 4, defined what was understood by digital evidence, that is, that contained in telematic media or obtained through them, its main characteristics being its intangibility, manipulation and replicability.
Jurisprudence, including Supreme Court Ruling 300/2015 of 19 May, has maintained its position on how to ensure the reliability of digital evidence by hiring a computer expert to certify its authenticity.
Computer expert report
The computer expert report is a fundamental document in cases that require specialized knowledge in technology, and its presentation in electronically signed electronic format is mandatory according to the regulations.
Furthermore, case law establishes that computer expert reports must be submitted by duly registered independent professionals , and their probative value will be evaluated by the judge according to the rules of sound judgment.
Conclusions
Electronic evidence allows certain situations to be proven in court. Its use has increased significantly as a result of technological progress . In this regard, we recommend, in addition to having adequate advice in the legal-business field, also hiring a computer expert to prove the authenticity and probative value of digital evidence.
