Electronic testing is now a reality, are we ready?

The evidence provided in court is migrating from printed paper to a virtual medium, which means that its admissibility criteria are changing completely. Electronic evidence (from e-mail to sms or whatsapp), the figure of the digital expert who evaluates it and the fragmentation of the rules that regulate it are the subject of reflection in the field of Justice.

“New technologies have burst directly and actively into the world of law. This new reality has manifested itself, among other things, in electronic evidence, an increasingly common practice in the courts”. These statements were made by Enrique López, former member of the General Council of the Judiciary (CGPJ) at a recent event on electronic evidence. López acknowledged that “in the world of the courts, numerous problems arise in the admissibility and interpretation of electronic evidence”.

The updating and modernization of digital technologies in recent years has proven to have a positive impact on organizations, but it has also evidenced the arrival of new challenges and risks arising from the application of these latest generation technological means. In today’s Information Society, traditional evidence is migrating from printed paper to a virtual medium, where management processes and admissibility criteria in legal proceedings are changing completely, making Electronic Evidence an indispensable procedural tool in all litigation.

Electronic evidence, also known as digital evidence, technological evidence, computer evidence or eProof, has not been defined as such -to date- by any Spanish or European legal norm. The State, as the holder of exclusive competence over the Administration of Justice in Spain (art. 149.1.5ª CE), has not dedicated any law to it. Instead, it has defined what an electronic document is and what an electronic signature is (Electronic Signature Law and eIDAS Regulation 910/2014). Faced with this regulatory landscape, the challenge arises of adopting a uniform and valid concept of electronic evidence.

Electronic evidence is digital data that is stored or has been transmitted by computer equipment and that, together with other means of evidence, makes it possible to reconstruct the facts and determine the perpetrators.

Analysis must ensure that their integrity is not compromised in the evidence collection and preservation process.

The performance of Digital Trust Service Providers contributes to preserve electronic evidences, for example with the time stamping technique or replicating its content with techniques that guarantee that its modification is not possible.

Evidence that has not been provided at the time of evidence construction cannot be provided later, so it is important to act diligently from the beginning.

EAD Trust, European Agency of Digital Trust is a digital trust service provider that assists companies in the Digital Transformation by helping to redefine processes so that they are as trustworthy in their digital version as they are on paper, and without losing any of the evidentiary capacity of the participants in digital transactions.

Contact EAD Trust by calling 902 365 612 or 91 7160555