Admissibility of social media evidence in the court of law and best practices to capture them


Posted on October 8, 2018


Talking about evidence, there are basically two, as defined in the Evidence Act

1) Oral evidence

2) Documentary evidence

The subject at hand, that is Social Media evidence falls under the latter. It is a form of electronic evidence and as per amended provision Section 3(2) of Evidence Act, electronic evidence is documentary evidence.

As defined in Section 2(t) of IT Act, “electronic record’ means, “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.”

The enormous growth of the digital world and electronic communication has rendered e-evidence as a fundamental pillar of communication in today’s society. Thus, it is absolutely possible and logical for these kinds of evidence to be used by the court at a trial. 90% of adults use some form of electronic correspondence in their daily lives, as a result, more and more e-evidences and social media evidence are making their way inside the court. This evidence is used in both civil and criminal cases. However, due to this evidence are easily corruptible, the court will have to determine the authenticity, reliability, and relevancy of the evidence before accepting it.

This unique form of evidence typically falls into one of five distinct categories: 1) Website Data; 2) Social Network Communications and Postings; 3) Email; 4) Text Messages; 5) Computer Stored/Generated Documents.

But what are the conditions for admissibility of social media evidence?

If any of the information contained in the electronic record computer output has been copied onto a portable drive or any other device of that sort, then it will be deemed to be a document if the following conditions are satisfied:

1) The computer should have produced the electronic record in the period when it was being used regularly to store or process information by the person who had lawful control over the use of the computer for the purpose of any activities regularly.

2) It must be shown that during the concerned period, the kind of information contained in the electronic record or the kind from which the information was derived was regularly fed into the computer in the ordinary course of the activity in concern.

3) During the material production of the information, the computer should have been operating properly. And if for any reason, the computer was operating properly during that period, it must be shown that the break did not affect either the record or the accuracy of its contents.

4) The information contained in the record should be derived or reproduced from the information that was being fed into the computer in the ordinary course of said activity.

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