E-evidence: take the red-handed

Your book is brazenly copied on a dubious site? The competitor placed false (or maybe truthful but not very pleasant) information about your business on the web site? Your ex threatens to post specific photos on social networks? Calm down: there are all possibilities to refute false information, keep the secrecy of personal life and punish the perpetrators.

However, it will need an effort: the Ukrainian legislation has prepared some nuances. Get ready to knit so as to find out who is the material author or the website owner, and to gather evidence for the court. It is the second question that we propose to get a better look at.

The Civil Procedure Code of Ukraine, the Commercial Procedure Code of Ukraine and the Code of Administrative Proceedings are unanimous in their superficiality: “Electronic evidence can be filed in three forms: the original; the electronic copy, certified by EDS; the paper copy, certified in accordance with the procedure prescribed by the law“.

Ok, Google, what can we do when it comes to the information published on the website? In this case, the original proof is the website itself. It is not always possible within the civil/commercial/administrative procedure to submit to the court the evidence physically existing on the server. At least if it is not your server. But there are alternative options.

 

Something Old, Something New, Something Borrowed, Something Blue

Option 1: we may submit to the court a screenshot, stored on the phone, USB storage or other portable device, and ask the court to return the proof after its review.

Usually, courts recognize screenshots as original e-evidence, since they: a) are stored on a portable device; b) exist in digital form – as an image. In other words, they fully correspond to the criteria of e-evidences set out in the Codes. For instance, in the decision No. 71673077 the court obliges the plaintiff to “file a smartphone on which the originals of e-evidence are stored in digital form“.

Unfortumately, this practice is not homogeneous. The court may decide that a screenshot is an electronic copy of e-evidence, as the site itself is stored on the server. Therefore, an EDS certificate will be required (for example, Judgment No. 72583082).

Should you decide not to test a fortune, you are welcomed to use some online services. For example, www.archive.org, http://web-fix.org/, WaybackMachine and others capture the visual appearance and source code (which is of the special value) of pages: autonomously with a certain regularity or on a paid request. The method is verified (Judgment No. 75270589 is example for confirmation).

 

Old school: a screenshot, printed on paper

Such a printout is now considered as a paper copy of e-evidence – therefore it must be “certified in accordance with the procedure prescribed by the law“. It seems like something simple, but the law does not specify any procedure for certifying paper copies of e-evidence.

Ukrainian notaries refuse to certify paper copies of web pages: such a notarial procedure is not provided neither by the Law of Ukraine “On the notary” nor by the Procedure for the performance of notarial acts by notaries of Ukraine.

Instead, notaries of the neighboring Russian Federation actively practice it. And some inventive Ukrainians use the provisions of the Agreement “On the Settlement of Disputes Related to the Economic Activity” between Belarus, Ukraine and the Russian Federation (“documents certified in the territory of one of the Contracting Parties … by authorized person within the limits of competence and in the established form are accepted in the territories of other Contracting Parties without any special certificate“). The trick works: Ukrainian courts accept the protocols of websites review by the notaries of the Russian Federation (decision No. 27144156 is a bright confirmation). However, taking into account the difficult relations between the two countries, we won’t call this method a popular one.

It is easier to use the clause 7 part 1 of Art. 20 of the Law “On Advocacy and Attorneys”: An attorney has a professional right to collect information about facts that can be used as evidence. For example, perform a web page review protocol. The practice of courts is pleasing: such protocols are admitted as evidence (see the decisions in cases № 757/43307/16-ц, № 757/40569/16-ц, № 752/9476/15-ц).

 

Empty-handed

According to the Law of Ukraine “On Telecommunications”, telecommunication operators and providers are obliged “to ensure and bear responsibility for keeping information regarding telecommunication services provided, including receiving services, their duration, content, routes, etc.

Therefore, some plaintiffs try to ask web service providers for the certificates in the form of log files (with a list of user actions and data placement). Why “try” – because it is almost impossible to get such a reference within a pre-trial procedures. Personal information may be disseminated either under written consent of the consumer (ha-ha), or at the request of the inquiry authority, investigator, prosecutor or court within the framework of criminal or investigative proceedings (at least, the Ministry of Justice explains it in this way).

 

Plan B

If, before the claim filling to the court all necessary evidence have not been collected (although we strongly recommend to make every effort for this), you may use one of the ways of the evidence securing – a review of evidence by the court at their location.

Then the court informs all participants on the date, time and place of the evidence examination that is an additional risk for injured party.

It is difficult to call this method optimal: the chances that the website content will change (or disappear as such) before the review will be performed, are too high.

 

This article does not pretend to be exhaustive: there are still a lot of other, possibly less popular, ways to collect and file e-evidence to the court. We only recommend not to experiment with your time, expense and honest name – please involve the pros. Attorneys at law “BK partners” team is always for your service.

 

Oksana Dankevych (Pavlish)

Associate at IT-law practice

+38 (096) 965 0139