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In an increasingly digital world, most of our contracts, conversations and communication are happening online. When you agree to a contract, you might use an e-signature. Rather than discussing details with your supplier in formal letters, you will probably email them. Consumers commonly order goods and services through online platforms. Due to COVID-19, we are now even witnessing official legal documents over video calls. 

With our way of doing business going digital, what happens if you get into a dispute and need to produce these digital communications and documents as evidence? During the discovery process of a commercial dispute, you must provide all relevant documents to the other side. This will include any digital documents. 

This article will go into more detail about the process of using digital documents as evidence, and why it is important to keep good digital records for your business. 

What Is an ‘Original’ Version of a Digital Document?

Before changes to the Evidence Act, you needed to present the ‘original document’ as evidence. Here, if you signed a contract with a pen, that original document was the version you could use as evidence. This rule created difficulties for digital documents, so it was abolished.

Now, a document that you can produce as evidence needs to meet the criteria of information:

  • in any form; or 
  • which a device has produced, such as a scanned record or a digitised paper record.

You cannot produce some documents still cannot be electronically, including migration and citizenship documents. Further, any document that requires:

  • witnessing or endorsement with ‘wet signatures’ such as a statutory declaration, power of attorney, will, codicil, testamentary instrument, trust and guardianship documents;
  • verification or certification as a copy of an original document; and
  • any document verified by seals or stamps.

Besides these exceptions, you can use all documentation as evidence in court. This includes:

  • text messages;
  • your Facebook chat messages; or 
  • your online transaction records.

How Will the Court Know My Digital Documents Are Authentic?

When using digital documents as evidence, there can be scepticism about the authenticity of the documents. How do they know you wrote the digital document? What if someone else copied and pasted your signature on the contract? How many staff members of your business also have access to the same software and files? 

Your digital evidence’s authenticity can be called into question if you have not provided sufficient evidence to show how the documents came into existence. Your evidence could be challenged by a claim that the:

  1. records were altered, manipulated or damaged between its creation and providing it to the court;
  2. computer program is unreliable; or
  3. identity of the author of the digital document is in question.

If your digital evidence is challenged on any of these grounds, you will need to provide further supportive material to back up your claim that the digital document is authentic. 

Why Is It Important To Keep My Online Business Records Organised?

The Electronic Transactions Acts allows for the keeping of business records in an electronic format. It is much more efficient and less expensive to keep records online than physically file business records. Being so easy to store, the reality is that businesses store a massive amount of documents on computers or in the cloud. Still, often businesses do not categorise the documents, and they store them randomly. When you have to locate and retrieve the documents to use in evidence, it is difficult to do it cost-effectively. Technology makes it easier to store large quantities of documents. Still, it is also making it easier to search and retrieve relevant evidence where there is an orderly storage system in operation. 

You must keep well-organised business records online. Your online business records are proof that your business is following the rules. You may not be able to anticipate when you will need to call on that proof, so it is good practice to maintain an organised system for your business’ online record keeping. Having a document retention policy is a good start to ensuring that you are retaining and storing important documents correctly. 

What Is the Business Records Evidence Exception?

With most evidence you admit, you must have a witness provide evidence regarding the document’s authenticity. There is, however, an exception for business records. You can admit digital records of a business into evidence without needing to have the person who created the records attend the court to give evidence. There are some pre-conditions to this exception, including that:

  1. you need to have made the records in the ordinary course of business; and
  2. the person who admits the records must have personal knowledge of the records. 

If your evidence is admitted as business records, you will still be required to establish that the evidence has not been altered.

Key Takeaways

If you find yourself in a commercial dispute, you may need to provide electronic copies of all relevant documents. Relevant documents may come from a variety of sources, including social media platforms. It is important to understand what kind of digital documents would be admissible in a court. 

Remember to keep original electronic records of messages and other relevant files between yourself and your business partners and clients, as you may need to produce these at a later date. If you are in a commercial dispute, you can contact LegalVision’s litigation lawyers for a free quote on 1300 544 755 or fill out the form on this page.


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