Open Access Research Article
Impact Of Social Media On Evidence Law By: - Swastik Kumar
Published Paper
Article Details
Impact Of Social Media On Evidence Law
Authored By: - Swastik Kumar
Abstract
The introduction and evolution of
technology has resulted in the betterment of the society and overall upgrade in
the quality of life of majority of people. With the improvement in Information
Technology Infrastructure, especially in India, long and tedious legal
proceedings have been bettered and due to the global pandemic, the
digitalization process picked up pace. The value of evidence in every legal
proceeding is very high and very relevant. Now the question arises whether
“updates” on social media platform can be admissible in the court of law as
evidence and if yes then what is the value of that evidence and whether the
authenticity of the evidence can be challenged in the court of law or not.
Social Media is 21st century’s one of the most controversial
inventions. There are various schools that debate whether social media has a
positive impact or a negative impact on the society. This paper mainly focusses
on the impact of social media on Evidence Law and as to how its integration in
the legal process can be relied upon.
Introduction
Humans have a clear evolutionary
advantage over other species because of our ability to communicate through
language and gestures. Humans are social creatures, and as such, we require
social interaction. Words united us. One of our major accomplishments was our
command of the English language. However, with the constantly shifting times,
how we communicate with one another has undergone changes. It has been a long
journey that began with the earliest cavemen and continued through the earliest
civilizations and right up to the current era of globalisation and
modernization. The only difference is that we use emojis instead of the symbols
that prehistoric people painted on their cave walls. The use of technology has
made life easier.
Literature
Review
·
Purnima
Mathur (Impact of social media in the Law of Evidence), she talks about the
admissibility of e-evidence in the courts of India, evidentiary value of social
media posts in Indian courts and some international cases where social media
posts are used as evidence in courts outside India.
·
Mohit
Kumar Gupta (Admissibility of Social Media Messages as Evidence Before Court of
Law), he talks about the status of admissibility of e-evidence in court of law
discussed with various case laws, evidentiary value of messages exchanged in
social media, admissibility of media evidence and challenges and the present
stance of social media messages as evidence in the court of law.
Social
Media
Social Media is modern computer-based
technology that enables the sharing of information such as ideas, thoughts,
pictures, videos, etc. It is all done virtually with the help of smart devices
like laptops and mobile phones. Websites, platforms, and programs that allow
users to create, share, or exchange data, content, opinions, and ideas in
online communities and networks are referred to as social media.
Social media is becoming a need of
modern life and is utilized for a variety of activities, including activism,
marketing, entertainment, and social interaction. While social media is widely
present in developed countries like North America and Majority of Europe, Asian
countries like India leads in the amount of Social Media usage.
Social media refers to web-based
platforms and programmes that let users connect and communicate online while
exchanging content in real time. It has grown to be an essential component of
modern life, allowing people to interact with like-minded people, remain in
touch with friends and family, and share information and thoughts with a larger
audience.
Some of the Popular Social Media
Platforms are:
·
Facebook
·
Instagram
·
YouTube
·
Twitter
·
Telegram
·
Onlyfans
Evidence
Law
The laws and principles controlling
the admissibility, applicability, and weight of evidence in legal processes are
the subject of evidence law in India. The Indian Evidence Act, 1872 is the main
piece of legislation governing Indian evidence law.
Evidence may be categorised as
direct, circumstantial, or hearsay under Indian law. Circumstantial evidence is
evidence from which the fact in question may be inferred, whereas direct
evidence is evidence that directly supports or refutes a fact in question. On
the other hand, hearsay evidence is testimony that is based on facts that the
witness did not directly experience.
Many laws and principles, including
the prohibitions on hearsay, opinion evidence, and character evidence, govern
the admissibility of evidence in India. The side who asserts a truth has the
burden of proof, and the level of proof varies based on the circumstances.
In some circumstances, assumptions
may also be made under Indian law. The Indian Evidence Act acknowledges a
variety of presumptions, including conclusive presumptions, presumptions of
law, and presumptions of fact.
Social
Media and Law
To ignore how social media affects
society as a whole would be ridiculous. Various social changes have been
sparked by social media's influence. The legal system has acknowledged its
fierce presence as well. Social change and the law are closely related. The
social system and the rule of law are both independent and interdependent. One
can study a society's changes by studying its legal system, and one can
comprehend those changes by understanding the legal system. Law, then, is a
reflection of what society wants and desires.
India currently has one of the
highest rates of internet usage and social media usage, and these numbers will
only keep rising. Nowadays, almost everyone owns a smartphone that already has
a number of social media and other apps preinstalled. You can create your
online profile in just a few clicks. No document or ID proof of any kind is
required to be submitted. It has frequently been used improperly as a result of
this convenience.
Cybercrime is a brand-new type of
crime that has emerged as a result of the great and rapid advancement of
technology. In the world of social media, cyberstalking and online harassment
are very common occurrences.
One of the first steps India took to
address various offences related to cybercrime was the Information Technology
Act, 2000. The IT Act of 2000 covered not only all types of cybercrimes against
people but also those against governments and private property. In addition to
laws governing cybercrimes, it also covered laws governing privacy, data
protection, and intellectual property.
Social
Media and Evidence Law
Social media posts' evidence value is
explained by criminal procedure law. There are undoubtedly benefits and sound
policy justifications for allowing access to social media information used in
legal processes. For instance, images can be immediately uploaded and shared,
alerting police to crimes that are being committed or even those that have
already been committed. When it comes to the admissibility of social media
evidence, accessing the data in a legal manner is crucial. Most frequently, a
lawyer looking into a case must visit the public sections of a person's social
media account and attempt to determine which of their social media profiles
might include evidence important to the case.
According to Common Law, when
conducting an inquiry prior to a lawsuit, one must take into account the
relevant ethical standards. For instance, circumventing settings or adding
someone as a friend in an effort to access private or non-public areas of the
subject's account is unethical and unprofessional. Also, this type of behaviour
on social media may render social media evidence inadmissible in court.
Since 2000, India has established a
distinct unit for investigating cybercrime and passed separate legislation
known as the Information Technology Act, 2000. Other supplemental cyber laws
are used to address similar offences in place of this. Such cases are seldom
ever brought to the attention of a special court. The screening procedure
outlined in Section 22A of the Indian Evidence Act is still used to determine
whether or not any online publications, messages, and posts are admissible.
Such evidence is frequently presented
in the magistrate's court where there is an ongoing case and needs to be
justified in many instances, including major crimes like rape. "Party's
parole admissions receivable to prove the contents of a document without notice
to prove or without according to the absence of original," is an English
law principle. Under Indian law, this is not permitted and applicable.
Role of Digitalisation
The decrease of physical paperwork is one of the main advantages of
digitalization for the Indian legal system. This decreases the chance of losing
or damaging crucial papers while also saving time and resources. A speedier and
more accurate decision-making process has resulted from the digitization of
court procedures and case files, which has also made it simpler for attorneys
and judges to access and examine case information.
Access to legal services is now easier because to digitalization, which
is another significant advantage. Citizens can now obtain legal services and
file lawsuits online without physically going to a court or government office
thanks to digital platforms like e-courts and e-filing systems. Those with
mobility challenges or those who live in distant places have benefited the most
from this.
The Indian legal system has also become more transparent as a result of
digitalisation. The public now has better access to details regarding open
cases and court orders thanks to the digitization of court procedures. This has
contributed to a rise in public confidence in the legal system and a decline in
corruption.
And even though, the Indian legal system is also facing difficulties with
digitalization. The absence of technology infrastructure and skilled labour is
one of the major problems. Even if there has been progress in recent years,
more technology and training funding is still required to ensure the success of
the digitization process.
The requirement for legal reform to account for digital technology
presents another difficulty. To fully exploit the advantages of digitalization,
there are still several legal requirements and procedures that are not
appropriate for a digital world. Overall, the judicial system's digitization in
India is a move for the better with the potential to increase access to justice
and fortify the rule of law.
Case
Analysis
Cases in India
In Girwar Singh vs CBI[1],
formation of a committee took place whose purpose was to verify the validity of
the electronic evidence that was presented in front of the court. It was
discovered by the same committee that the evidence presented was neither
primary nor secondary evidence, i.e., it was neither original nor a replica of
the original. It had been duplicated on numerous occasions and on multiple
devices. Therefore, as a result, it was declared inadmissible by the Delhi High
Court.
In Anvar P.V. v. P.K. Baseer &
Ors[2],
the Supreme Court overturned a previous decision in the case of State (NCT
of Delhi) vs Navot Sandhhu[3] that allowed for secondary evidence to be
admitted in court using the principle of "generalia specialibus non
derogant." This ruling was based on Section 65B of India's Evidence Act
which states that certificates are required in order to admit electronic
evidence into proceedings. However, later this year, the Supreme Court reversed
its decision in Shafhi Mohammed v State of Himachal Pradesh[4]
and ruled that electronic evidence can now be admitted without a certificate.
It stated that electronic records can be submitted as evidence without them
having to meet the conditionalities mentioned under Sections 65B(4) (regarding
Certificate production). Sections 65A and 65B are now considered additional
provisions that help in the clarification and expansion of topic covered by the
same section.
The Apex Court once again in the case
of Arjun Panditrao Khotkar vs. Kailash Kushanrao[5], gave the judgement that
requirements which are mentioned in the Section 65B(4) of the Indian Evidence
Act is mandatory for electronic documents to be admissible as evidence in the
courts.
In the case of Shamsudin Bin Mohd.
Yosuf vs. Suhaila binit sulaiman[6],
the magistrate gave the ruling that since most part of the contract between the
two parties is done on WhatsApp, it amounted to be an oral agreement which was
enforceable by the law.
The Patiala House Court in New Delhi
denied a complainant's request to have summons service delivered through email
and WhatsApp. The court ruled that the system for delivering such services,
which does not currently exist, is not suitable for judicial purposes. However,
in rare cases where an electronic media can be used specifically for this
purpose, it may be employed by the court.
International Cases
·
Romano vs
Steelcase Inc.[7]
It was a case of Personal Injury from
September 2010, New York. The plaintiff's "current and historical Facebook
and Myspace accounts as well as pages, including pages that have been deleted
and have relevant information, even though the information was not initially
publicly available," were duly granted access to the defendants by the
court. This was permitted because, despite her claims that she had suffered
injuries and was primarily confined to her bed, she was seen smiling broadly in
a photo taken outside the boundaries of her home on her Facebook profile. The
Court subsequently decided to grant the plaintiff permission to use website
privacy settings that they had independently set as a defence. The main
objective of social media websites is to make it possible for people to share
information about their social lives. In turn, this runs the risk of denying
the opposing party access to information that might be relevant to guarantee a
fair trial. The court concluded that regardless of the privacy settings that
were in place, there is no privacy exception.
·
Zimmerman
vs Wels Market Inc.[8]
It was also a personal injury case.
On the basis of the publicly available information displayed on the plaintiff's
Facebook page, it was acknowledged that there was content that was privately
protected content and that this content is relevant to the case. The
plaintiff's Facebook page displayed recent images of the plaintiff with a black
eye and his motorcycle after an accident as well as information about the
plaintiff's interests in "riding" and "bike stunts." The
defendants were then granted access to the plaintiff's Myspace account and
non-public portions of his Facebook page after the court ruled in their favour
and granted them permission to conduct discovery. This was done to disprove
claims that the plaintiff's health and wellbeing had been permanently damaged.
·
Largent vs Reed[9]
Largent v. Reed is a case that
involved personal injury claims stemming from an accident between a car and
motorcycle. The defence moved to compel the release of the plaintiff’s Facebook
username and password, claiming that at a time after the accident the profile
was set to public. When viewed publicly, they found relevant photos that
contradicted the plaintiff’s claims of serious and permanent physical and mental
injuries, pain, and suffering.
The case was heard in Court of Common
Pleas Judge Richard J. Walsh’s court in Franklin County, Pennsylvania. The case
features a detailed and instructive 14-page opinion from Judge Walsh that is a
must-read for anyone remotely interested in the topic of electronic discovery
of social media.
WhatsApp
Messages as Evidence
In the recent Aryan Khan Case[10], the
accused was arrested on the basis of the WhatsApp chats obtained by Narcotic
Control Bureau (NCB) officials. Lawyer Ali Kashif Khan, on behalf of all the
accused argued that WhatsApp chats are inadmissible as evidence in court.
(Arjun Panditrao Khotkar Case), the
three-judge bench of the Supreme Court passed the judgement wherein it stated
that a “certificate” must be accompanied from the appropriate “authority” that
has ownership of the device during which the electronic communication was
created. In the absence of such certificate, the communication does not qualify
to be admissible in the court as evidence.
It was also clarified by Justice RF
Nariman that the device if produced along with the owner or the authorised user
before the court, then the “certificate” mentioned above is not mandatory. Over
the years courts have laid down various principles regarding the admissibility
of electronic evidence:
·
The
electronic record including the statement must be identified by a certificate.
·
The
certificate must explain how the electronic record was created.
·
The
certificate must include information on the machinery used to create that
record.
·
The
certificate needs to address the relevant circumstances listed in Section
65B(2) of the Evidence Act.
·
A
person holding an official position related to the functioning of the relevant
device must sign the certificate.
A court might consider WhatsApp chats
as secondary evidence. The four main requirements for the admission of
electronic documents as evidence in a court are outlined in Section 65B. Which
are:
·
The
message's production/creation must have occurred while the person with legal
control over the computer/device was regularly using it;
·
The
data or message must be of the kind that is regularly and customarily applied
to the activity;
·
When
the message was produced, the computer or other equipment had to be in good
working order.
·
The
duplicate copy submitted to the court must have the same information as the
original electronic record.
WhatsApp communications may be used
as evidence in court if these four requirements are met. In the State of Delhi
v. Mohd Afzal[11] case, also known as the Parliament
Attack case, it was determined that the electronic evidence met these four
criteria and was therefore admissible.
In the landmark case of Ambalal
Sarabhai Enterprise Ltd. Vs KS Infraspace LLP Limited & Anr[12], the Apex
court ruled that “the WhatsApp messages, which are virtual verbal interactions,
are a subject of evidence with regard to their meaning and substance to be
established during the trial by evidence in chief and cross-examination.”,
shedding light on why WhatsApp conversations are considered to be evidence or
not in the eyes of the law.
"The WhatsApp messages, which
are virtual verbal communications, are matters of evidence with regard to their
meaning and its contents to be proved during trial by evidence in chief and
cross-examination. The emails and WhatsApp messages will have to be read and
understood cumulatively to decipher whether there was a concluded contract or
not," said the Supreme Court.
Instagram
Messages as Evidence
Social media posts are becoming
accepted as evidence in courts all over the world. The plaintiff in
"Largent v. Reed9" claimed that a recent accident
had made her life very difficult. However, the defendant presented the court
with post-accident pictures of the plaintiff that she had placed on her
Facebook page, showing that she had gone to the gym and appeared to be in good
enough health to go about her daily activities. The plaintiff was required by
the court to provide her Facebook login details so that an investigation could
be conducted.
Courts adhere to tight guidelines
when analysing the validity and reliability of electronic evidence, including
chats on social messaging platforms, chat engines, and emails. Electronic
evidence can be altered or changed in some situations. The court has the right
to exclude evidence if there is any doubt regarding its veracity. By using
screenshots, conversations on internet messaging services can be preserved.
Nevertheless, because the screenshots are preserved as images, anyone can
easily tamper with them, jeopardising the photos' legitimacy. The onus of
proof, however, rests with the challenger.
Instagram interactions may be used as
evidence under Section 65B of the Indian Evidence Act. Instagram chats can be
used as evidence because the information provided on Instagram's parent firm
Facebook was produced in the aforementioned precedent. Nonetheless, a judge can
contest the veracity of the screenshots of Instagram interactions.
Conclusion
As a result of various judgements by
the Hon’ble Supreme Court, it can be understood that as long as the court is
satisfied that the conditions are being fulfilled under the section 65A and 65B
of the Indian Evidence Act, 1872.
When submitted with a certificate
from the authorised person as required by Section 65B(4) of the Indian Evidence
Act, electronic evidence can be presented in court and has evidential value.
However, it was stated in the judgement of Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal and others5 that the provision of a certificate
as required by Section 65B(4) can only be used when the individual generating
the electronic evidence is the owner of the device. Sections 63 and 65 of the
Evidence Act cannot be used if the individual providing the evidence does not
own the device. In such a situation, the procedure outlined in the
aforementioned section can undoubtedly be used, and if it is not, it will be
unfair to the person who has legitimate evidence but whose evidence is not
taken into account by the court because the person has not provided a
certificate of proof. Thus, it is not necessary to comply with section 65B(4)’s
certificate requirement. The Supreme Court of India ruled that electronic
evidence is legitimately admissible in a court of law in the case State of
Delhi v. Mohd. Afzal & Ors11. The High Court of Bombay ruled in
SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Yadav[13] that
WhatsApp communications are admissible as evidence in court as long as the
requirements outlined in Section 65B of the Indian Evidence Act are met. Yet,
on the contrary A bench consisting of Chief Justice N V Ramana, Justices A S
Bopanna, and Justice Hrishikesh Roy reportedly stated the following: "What
is the evidential value of WhatsApp messages these days? "Anything can be
created and deleted on social media these days." (“WhatsApp Chats have no Evidentiary
Value - Lexology”) We do not attach any value to the WhatsApp messages.”
It can be observed that depending on
the specific scenario and specific circumstances, different type of electronic evidence
is admissible or inadmissible in the eyes of the Courts of India.
References
Dubey V. Admissibility of electronic
evidence: an Indian perspective. Forensic Res Criminal Int J. 2017;4(2):58?63.
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[1] Girwar Singh vs CBI 2017 (5) ALJ
677
[2] Anvar P.V. v. P.K. Baseer & Ors,
2014 AIR SCW 5695
[3] State (N.C.T. Of Delhi) vs Navjot
Sandhu@ Afsan Guru on 4 August 2005, Appeal (crl.) 373-375 of 2004
[4] Shafhi Mohammad v State of
Himachal Pradesh is (2018) 5 SCC 311
[5] Arjun Panditrao Khotkar v. Kailash
Kushanrao, Civil Appeal Nos. 20825-20826 Of 2017
[6] Shamsudin Bin Mohd. Yosuf v.
Suhaila binti sulaiman [2017] MLJU 2236
[7] Romano vs Steelcase Inc., 907 N.Y.S.2d
650 (2010)
[8] Zimmerman vs Weis Markets, Inc.,
PICS Case No. 11-0932 (2011)
[9] Largent v. Reed, 2011 WL 6739440
(Pa. Com. Pl. Nov 2011)
[10] Aryan Shah Rukh Khan & Ors vs
Union of India
[11] State vs Mohd. Afzal & Ors.
2003 VIIAD Delhi 1, 107 (2003) DLT 385, 2003 (71) DRJ 178, 2003 (3) JCC 1669
[12] Ambalal Sarabhai Enterprise Ltd.
Vs KS Infraspace LLP Ltd & Anr AIR 2020 SC (Civil) 738
[13] SBI Cards & Payments Services
Pvt. Ltd. v. Rohidas Jadhav, 2018 SCC OnLine Bom 1262
Article Information
Impact Of Social Media On Evidence Law By: - Swastik Kumar
Authors: Swastik Kuma
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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