The problematic digital proof

Lawyou — viernes, 26 de febrero de 2021

As a consequence of the digital era in which we are immersed, many offenses and crimes are committed in cyberspace. Therefore, the evidentiary effort must be adapted to the electronic media.

What is understood by digital evidence?

Contracts signed with an electronic signature and stored on a durable medium (CD, DVD, pen drive, hard disk, email, SMS, …) are considered as digital evidence. They are also considered, the means of reproduction of words, sound and image and any material support that allows to file and know or reproduce words, data, figures and mathematical operations carried out for accounting purposes,….

Finally, evidence obtained by means of a diligence of collation before the Counsel of the Administration of Justice is also considered, such as, for example, the exhibition in court of a Whatsapp conversation contained in a mobile device.

Digital evidence requirements?

LAWYOU lawyers emphasize, that digital evidence must be: lawful, integral, authentic and clear. Analyzing each one in particular, we can determine that when we mention the lawfulness, we refer to the fact that in order to obtain the evidence, the right to privacy established in art. 18 CE cannot be violated. Likewise, with respect to integrity, we refer to the fact that the evidence must be immutable and the chain of custody must be respected. Regarding authenticity, it must be guaranteed that it is an original sample. Finally, in relation to clarity, the evidence must be understood by the intervening parties, who a priori, are not knowledgeable in computer techniques.

How should the digital evidence be collected?

As a result of the diversity of evidence, LAWYOU experts indicate that it must be treated differently in order to be admitted and evaluated.

The main method followed is to perform, on the one hand, the transcription or printing on paper of the information and, on the other hand, the delivery of the information in electronic data by means of a CD or a pen drive.

In the same way, it is taken to a notary to certify that what is printed corresponds to what is displayed on the corresponding server. However, this does not ensure that the proof has not been modified or cut, it only proves that the transcript contains the same information that the notary has seen.

Therefore, for the proof to have real security we must have the report of an expert in computer or mobile telephony. Who will make a detailed analysis of the information, certifying that it has not been modified.

As a result of the above, LAWYOU’s lawyers consider that in the future it would be highly advisable to develop a legislation that analyzes and solves the problem of this type of evidence. Due to the fact that the online world is becoming bigger and bigger, and consequently, digital evidence is becoming more and more necessary to prove certain behaviors in the real world.

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