Evidential Standards for the Admission of E-Records Before the Court of Law

In any legal proceedings before the court of law, the application of the rules of evidence apply so as to accept the admissibility of a data message in evidence, the ground which data message and electronic communication be accepted before courts and how the course of legal proceeding best evidence can be produced and admitted. The civil proceeding it is the legal obligation shouldered on plaintiff to produce electronic evidence and plaintiff adducing it could reasonably be expected to obtain and produce before the court on the grounds that it is in its original form. The admission of electronic often not accepted as computer based file or records, the plaintiff have to produce it, some how, he has to produce into paper based form for acceptance as evidence before the court of law.

The information produced in the form of a data message shall be given due evidential weight as comparison with paper based evidence irrespective fact of non-admission before court and their inability to interpret the same because technicality of evidence. In evidence what ever form it is produced must fulfill certain assessment standards and the electronic message must be given same the evidential weight as paper based evidence, there are various factors they have to rely on the manner in which the data message was generated, stored, communicated and produced before the court of law. The integrity of the information the manner it is recorded by authenticated authorities and the manner in which its originator was identified, and any other relevant factor .

The admissibility of electronic record has recognized in electronic transaction ordinance 2002,

“…No document, record, information, communication or transaction shall be denied legal recognition, admissibility, effect, validity, proof or enforceability on the ground that it is in electronic form and has not been attested by any witness.�

First if we cannot meet the evidential standard of evidence acceptable to court of law then we cannot produce it as evidence to proof something. The secondly issue relates to whether a courts have been prepared and trained to consider the digital document as evidence in the case at all and if the courts are unable to adjudicate the matter because of their inability to comprehend the technicality of subject. We have to legislate on legal issue how the digital evidence can be exhibited meeting the legal standards required for it to be admitted into evidence, then it simply be used as proof of anything. The third issue is credibility of evidence; rather we have to do with persuading the court about the extent to which it can rely upon the digital document and integrity of procedure adopted to preserve the digital evidence. In other words, even if a digital document is admitted into evidence , the court still has to determine how much weight it is willing to give it. For addressing these issues amendments have been made qunun-e-shahadat Order 1984 (law of evidence) have incorporated the provisions in our laws of evidence that can be used to allow for the admission of digital documents into evidence. Unfortunately, these are neither as modern nor as comprehensive as they should be and there is dire need of time for proper adjudication of dispute related with digital evidence we have to promulgate comprehensive laws on digital evidence.

This kind of uncertainty and question of reliance of evidence and admissibility have a severe chilling effect on the adoption of digital technologies and aggrieved parties are becoming reluctant to put file their dispute for legal adjudication before the courts. The authentication of electronic evidence and its admission as evidence is acceptable if these are printed and kept as record and the procedural requirement are fulfilled. The reliability of these types of evidence is becoming big challenge for our legal system.

The legal issue which tax system are confronting how to keep accurate books and records , although many taxpayers rely on computerized record keeping systems to a large extent for purpose of attaching evidence of transactions which has been originated as paper records in order to verify the accuracy of the electronic records. The credibility has to do with persuading the court about the extent to which it can rely upon the digital documents. In other words, even if a digital document is admitted into evidence, the court still has to determine how much weight it is willing to give to it. The electronic "documents" must be verified in order to minimize tax evasion.

Even taxpayers engaged in the sale of physical, as opposed to electronic goods can receive orders and issue invoices electronically. This is also an issue for non-tax businesses reasons. A recipient of an electronic order needs to verify and authenticate both that the order was sent by the proper person, and also needs to verify that the order was not altered in transit. There are various methods are available for authentication of documents, for example the public key encryption techniques, which are used by digital certification authorities identify digital locations of buyer and seller, and these technique can also be used to verify that electronic documents and records have not been tampered with. The "digital notarization" systems have been proposed in electronic transaction ordinance which intend to make it possible to verify the electronic documents and records rather they have been altered or not. In many countries certification of the digital document equivalent of a notary stamp which can be used to certify and seal digital records in content and time so that it can later be proved that the electronic record was created when claimed and was not altered. Taxing authorities within limit the auditing power can use these techniques to verify the authenticity of electronic transactions.

The central board of revenue provides necessary conditions for maintenance of the digital records as important as the business records that they have traditionally maintained on paper. In this context, they want to examine or retention policies for digital documents. However, for many companies, it is not sufficient for them to retain their digital documents for appropriate periods. If they become involved in litigation they may need to rely on these documentary documents to support their case. In such matter two issues emerge are important and interrelated. Firstly, will their documentary documents be admissible as evidence before a court of law as certificate copy of digital records? And secondly, if so, will the court consider these paper based record a credible source of information for imposition of e-commerce taxation?

The writer is an advocate of High Court and practicing immigration and corporate laws in Pakistan since September 2001. He is a self employed and pioneer in research on electronic commerce taxation in Pakistan. His articles were published widely in the critical areas of cyber crimes, electronic commerce, e-taxation and various other topics. He wrote LL.M thesis on titled “Legislation of electronic commerce taxation in Pakistan� in which he provided comprehensive legal proposals for statutory reconstruction of tax laws for purpose of imposition of taxation on e-business in Pakistan. Currently he is conducting is research on topic ‘Electronic commerce taxation: emerging legal issues of digital evidence'.