Computer forensics is essential to prove the authenticity and veracity of electronic documents in judicial proceedings , allowing to determine the integrity of the files and the authorship of the electronic signature used.
Additionally, it is important to note that the technical difficulty of providing the computer tools that contain email messages to the process may require expert evidence to determine the authenticity and integrity of the emails provided in paper form.
Furthermore, the lack of an expert report issued by an appropriately trained IT expert may affect the validity of evidence in cases of labour disputes.
Computer forensics: Jurisprudence.
The expert evidence has been the subject of jurisprudential analysis, highlighting both its arguments for and against and, in this regard:
Arguments in favor of computer forensics:
The computer expert report is necessary to clarify the circumstances of the conduct reproached to the plaintiff: Judgment of the Social Court, Guadalajara, No. 2, of July 25, 2019.
The burden of proof of the justification of the dismissal falls on the company, so it is necessary to provide an expert report issued by a computer expert or expert in the matter: Judgment of the Superior Court of Justice of Castilla – La Mancha, Social, of January 25, 2021 .
The computer expert is an ideal test to prove the reasons given by the defendant company for the dismissal: Judgment of the Superior Court of Justice of Madrid, Social, of October 17, 2019 .
Arguments against computer forensics:
No expert report issued by a computer expert or expert with appropriate knowledge and training has been provided to clarify the circumstances of the conduct alleged by the plaintiff: Judgment of the Social Court, Guadalajara, No. 2, of July 25, 2019.
The need to carry out a computer expert report has not been justified in the case in question: Judgment of the Superior Court of Justice of Castilla – La Mancha, Social, of January 25, 2021.
The computer expert report may be questioned due to lack of consent or knowledge of the worker , which could affect its validity as evidence: Judgment of the High Court of Justice of Madrid, Social, of October 17, 2019.
Advice on computer forensic evidence.
Make sure you have a computer expert or expert with appropriate knowledge and training to clarify the circumstances related to the alleged conduct or the authenticity of the electronic documents: Judgment of the Social Court of Guadalajara, No. 2 of July 25, 2019 and Judgment of the Superior Court of Justice of Castilla – La Mancha, Social, of January 25, 2021.
If you need to prove the authenticity and sending of an electronic conversation or document, consider the possibility of carrying out an expert test to demonstrate its veracity . However, keep in mind the risks of information manipulation through computer programs, which could affect the probative effectiveness of the test.
If you submit paper emails as evidence, please note that their authenticity and integrity may be questioned . Although a computer expert test may be necessary, it may not be possible to absolutely determine whether a paper email is authentic: Judgment of the High Court of Justice of Catalonia, Social, of April 4, 2022.
If you wish to use commercial documents in electronic format with a remittance function, make sure you have expert evidence that proves the authenticity of the electronic files and the authorship of the electronic signature used . This will allow the document to have full legal operational validity.
If you are a freelancer who works as a computer expert, make sure you register in the EPR Census to comply with your legal obligations.
In the case of labour disputes related to computer expert evidence, remember that the evaluation of the evidence is the responsibility of the trial judge . Unless an obvious and clear error is demonstrated by documentary or expert evidence, the judge's decision regarding the evaluation of the evidence will be unchangeable in the appeal.
If a computerized expert test has been carried out without your consent or knowledge, and this has been used as a basis to justify an objective dismissal, you could allege the violation of the corresponding articles of the Workers' Statute, the Organic Law of the Judiciary and the Constitution: Judgment of the High Court of Justice of Madrid, Social, of October 17, 2019.
If you need to request a review of the facts proven in a judgment, make sure you have documentary and expert evidence to support your request . However, keep in mind that the assessment of the evidence and the modification of the proven facts correspond to the trial judge, unless a clear and evident error is demonstrated: Judgment of the Superior Court of Justice of Catalonia, Social, of April 4, 2022, Judgment of the Superior Court of Justice of the Region of Murcia, Social, of December 18, 2019 and Judgment of the Superior Court of Justice of Andalusia, Seville, Social, of March 29, 2022.
Conclusions
Computer forensics are currently relevant in the judicial context since there has been an exponential growth in the use of technology, which has led to the emergence of risks, biases and the increase in computer crimes.
For this reason, computer forensic tests allow us to analyze and prove the circumstances of each dispute in question, highlighting its relevance in computer crimes, protection of intellectual property, validation of digital documents or regulatory compliance, among others.
