Editorial: Volume 7
From the activities of a number of conference organizers, a great deal of attention is focused on the rules relating to electronic disclosure or discovery in civil proceedings. This is mainly because large organizations, when contemplating legal action, are required to search through vast swathes of electronic documents across different products and storage media (laptops, PDAs, mobile telephones, the networked computers physically located in offices) to obtain all the relevant evidence to initiate their case, and to provide to the other side in due course if the local procedural rules require the exchange of evidence. For this reason, practice directions continue to be developed across the world, especially in the ‘common law’ countries. In Canada, the ‘Sedona Canada Principles Addressing Electronic Discovery’ have been developed and are being used; in Ireland, the Law Reform Commission of Ireland has issued a Consultation Paper on Documentary and Digital Evidence (December 2009) (LRC CP-57 2009); in New Zealand, the Rules Committee issued a Consultation Paper on proposals for reform of the law of discovery (2009); in Singapore, Appendix E ‘Discovery and Inspection of Electronic Documents’ of the Supreme Court Practice Directions became effective on 1 October 2009, providing an opt-in framework for parties that wish to request or apply for discovery and inspection of electronically stored documents; in the United States of America, changes to the Federal Rules of Civil Procedure were made in 2006; in England and Wales, the Senior Master’s e-disclosure working party, chaired by Senior Master Whitaker, submitted a draft practice direction to the Civil Procedure Rule Committee that will be brought into effect in October 2010. Finally, in a wider context, the South African Law Reform Commission published ‘Issue Paper 27, Project 126: Review of the Law of Evidence (Electronic Evidence in Criminal and Civil Proceedings: Admissibility and Related Issues)’ in March 2010, with a view to amended relevant legislation.
But still something is missing.
It is the education of lawyers and students of law in particular.
In England, Lord Justice Jackson discussed electronic disclosure in his ‘Review of Civil Litigation Costs: Final Report’ (December 2009) on costs relating to civil litigation. Recommendation 4.1(i) can be said to have universal relevance:
‘E-disclosure as a topic should form a substantial part of (a) CPD for solicitors and barristers who will have to deal with e-disclosure in practice and (b) the training of judges who will have to deal with e-disclosure on the bench.’
But educating lawyers about electronic disclosure or discovery is only part of the picture. The electronic environment has caused lawyers to reconsider the nature of the work they do and how they do it, but a great deal of education is necessary for lawyers in particular to take action to educate themselves in electronic evidence. In England and Wales, the system of justice is dependent on the assistance given by advocates to the court, and advocates are required to bring relevant authorities to the attention of the court. The members of the Court of Appeal in the case of Copeland v Smith [2000] 1 WLR 1371 had occasion to address this issue when it became apparent that a relevant authority had not been brought to the attention of the court, which meant it was assumed the judge could rule on a matter in the absence of any authority. Research carried out by both instructing solicitors and counsel failed to uncover a relevant authority. This was commented upon by Buxton LJ at 1372-1373:
‘I cannot draw back from expressing my very great concern that the judge was permitted by those professional advocates to approach the matter as if it were free from authority when there was a recently reported case in this court directly on the point, which was reported not in some obscure quarter but in the official law reports. It is, of course, not only extremely discourteous to the judge not to inform him properly about the law, but it has also been extremely wasteful of time and money in this case …. I have, I fear, to say that the advocates who appeared below did not discharge their duty properly to the court in that they apparently failed to be aware of the existence of that authority.’
In his judgment, Brooke LJ made a number of observations respecting the introduction of the new Civil Procedure Rules, then addressed the point made by Buxton LJ, at 1375-1376:
‘In these circumstances it is quite essential for advocates who hold themselves out as competent to practice in a particular field to bring and keep themselves up to date with recent authority in their field. By “recent authority” I am not necessarily referring to authority which is only to be found in specialist reports, but authority which has been reported in the general law reports. If a solicitors’ firm or barristers’ chambers only take one set of the general reports, for instance the Weekly Law Reports as opposed to the All England Law Reports, or the All England Law Reports as opposed to the Weekly Law Reports, they should at any rate have systems in place which enable them to keep themselves up to date with cases which have been considered worthy of reporting in the other series. If this is not done, judges may be getting the answer wrong through the default of the advocates appearing before them.’
Not only is it not in the interests of the system of justice that a relevant authority is missed, but it cannot be in the interests of the client to miss a relevant authority (or authorities or an up-date to legislation, for which see R v Chambers [2008] EWCA Crim 2467) when making submissions on their behalf before a court. There is a serious point to the comments made by the members of the Court of Appeal in the context of electronic evidence. The comments made by Brooke LJ inferred that the advocate (under whatever jurisdiction they practice) that holds themselves out to practice in a particular field ought to be aware of recent authorities in that field. However, evidence in electronic format covers all areas of law, and this means that every lawyer across the globe should make themselves aware of the nature and complexities of electronic evidence, including information from new sources that cover electronic evidence in depth. Electronic evidence is not a specialist area of legal practice, if ever it really was.
Those responsible in universities and for professional vocational training should take note. It cannot be right that lawyers qualifying in 2010 do not know anything about electronic evidence, yet are expected to advise and represent clients – the vast majority of which will have a problem that includes electronic evidence. It is negligent to fail to ensure would-be lawyers are properly qualified for the work they will be required to do once they are qualified.Editorials copyright Stephen Mason, 2010
When the EU qualified electronic signature becomes an information services preventer
Pawel Krawczyk has spent a decade in consulting on information security with a special focus on authentication and the digital signature. In this article, he discusses the practical failure of the qualified electronic signature (a digital signature) across Europe, illustrating that other forms of electronic signature are used far more readily, suggesting that the qualified electronic signature exists in a parallel reality, and that it is only used because governments pass laws to force people to use them.
Cybercrime: Issues and challenges in the United States
Chief Judge B. Lynn Winmill, David L. Metcalf and Michael E. Band provide a succinct introduction to the use of computers and the internet, illustrating some of the problems that have accompanied the internet, before providing an outline of the response by successive administrations. The relevant legislation is set out, with a discussion of the issues relating to electronic evidence, hearsay, authentication, and search and seizure in the United States.
The use of Artificial Intelligence in digital forensics: An introduction
Dr Faye Mitchell argues that the use of Artificial Intelligence, which is a well-established area of modern computer science that is capable of dealing with computationally large or complex problems, could be useful for digital forensics. Digital forensics is becoming increasingly important, and often requires the intelligent analysis of large amounts of complex data. Artificial Intelligence could help to bridge the gap.
Justice and sheriff: Practical and authoritative methods for the electronic issuance of officially certified documents in the United States
Timothy Reiniger, Esq. and Jacques R. Francoeur set out the legal issues relating to the issuance of officially certified electronic documents, including the legal provisions relating to the authentication of electronic documents, the need for a digital trust framework and an authoritative source record. A number of case studies illustrate how courts in the Unites States of America are adapting their practices in issuing signed orders and other documents electronically.
Problems of legal regulation and investigation of computer crimes in Georgia
Ucha Zaqashvili sets out the legislation dealing with cybercrime in Georgia, and discusses the problems with the definitions of substantive offences. The methods used by the investigating authorities when dealing with computer crime investigations in Georgia are also considered, and illustrated with a case that indicates the urgent need for police officers in Georgia to be educated in digital forensics.
Electronic wills in South Africa
Sizwe Snail and Nicholas Hall set out the provisions for wills in South Africa, including the provisions of the Electronic Communication Transaction Act that expressly exclude a data message as a method of executing a valid will. They then consider the case of Macdonald v The Master, in which the court held that a draft will in the form of an electronically stored document which was stored on a computer hard-disk, can be condoned in terms of the Wills Act.
Bailiffs on the internet and the validity of their certified reports: Lessons learned from the French and Belgian courts
Tim Van Canneyt and Christophe Verdure consider bailiff’s certified reports and the use of judicial experts in France and Belgium. A bailiff can be called upon to report on purely material facts, and they are increasingly being asked to provide evidence adduced from the internet. In this article, consideration is given to the technical issues that a bailiff must consider when obtaining evidence from the internet, and case law is used to illustrate some of the problems that have occurred to date.
Electronic evidence in the Slovene Criminal Procedure Act
Liljana Selinšek, Ph.D, describes the additional articles introduced to the Criminal Procedure Act that regulate basic standards (guidelines) for the collection of electronic evidence for criminal proceedings, and are based on the data stored in or on a device. The changes were brought about by a ruling of the Constitutional Court in 2008, that for the police to be able to search a mobile telephone and SIM card, it was necessary to abide by the provisions of the Slovene Constitution and obtain a warrant.
The burden of proof in the matter of alleged illegal downloading of music in Denmark
Per Overbeck, who has acted for clients accused of illegal downloading of music in Denmark, provides an overview of a number of cases brought before the Danish courts by the film and music industry, in which the burden of proving allegations of illegal downloading of intellectual property was the central issue that caused appeals to be successful.
An overview of some recent case law in Belgium in relation to electronic signatures
Johan Vandendriessche provides a resume of a number of electronic signature cases in Belgium relating to the electronic signature system adopted by the Office for Foreigners. This method uses an electronic signature based on a scanned version of the handwritten signature of a civil servant with additional security measures. When a decision does not comply with an essential formal requirement, it can be annulled, and a number of cases on this point are set out.
The latest civil legal proceedings between banks and their customers in China
Armstrong Sheng Chen indicates that the bank card, cheques, internet banking and telephone banking are becoming commonplace in China, and the courts are increasingly dealing with disputes over claims by customers of falsely withdrawing deposits from debit cards, deposit certificates being falsely claimed and national debt certificates being falsely claimed. This article sets out a number of recent cases that have occurred in China in relation to disputes between customers and banks.
The first ‘Trojan Horse’ case prosecuted in China
Jihong Chen and Bing Cheng provide a brief outline in relation to a prosecution over the use of a Trojan horse program that was designed to acquire the account information of computer users who play on-line games.
The archiving of electronic documents under French law
Sabine Marcellin and Pauline Ascoli set out, in broad terms, the legal requirements for the archiving of electronic documents in France, including an outline of the legal value given to electronic documents and the French blocking statute. Consideration is given to the issues that should be considered when developing an archiving system.
Ukraine: Electronic filing of tax returns
Oleksandr Pastukhov sets out the position in relation to the submission of electronic tax returns in the Ukraine, finally made possible once the state public key infrastructure was put into place and became effective in June 2009.
Hiding illegal content in the SWF format and spreading through social network services: a legal approach
Alexandros Zaharis, Adamantini I. Martini, Christos Ilioudis and Michael Rachavelias illustrate how it is possible to hide data in different file formats, in particular using flash technology that is now so prevalent on the internet. This article focuses on cases concerning abusive images of children that are exchanged through publicly accessible social networking web sites by hiding the images, and the legal issues and ramifications of this act.
RFID technology and the future – old school fraud in a new wrapper
Johnny Bengtsson, an engineer at the Statens kriminaltekniska laboratorium (National Laboratory of Forensic Science, Sweden), sets out the problems that may well accompany the next generation of banking cards that use RFID technology. Although no cases have yet to appear in relation to the use of this technology, it is certain that the criminals will take advantage of the weaknesses of the technology.
Case Translations:
England & Wales
R v LR (not reported) Indictment number T20090048 (this is a transcript of the Ruling that was subsequently appealed by the Crown to the Court of Appeal, Criminal Division: CPS v LR [2010] EWCA Crim 924)
Abusive images of children; judicial order to provide copies of images to defence; refusal by prosecution; reasonableness of judicial order and practical arrangements
France
In re Advocate Christopher X, Cour de cassation chambre criminelle du 12 décembre 2007 n°07-83228
Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters; liability of French lawyer for taking evidence without authority of the Hague Convention; articles 1134 of the Civil Code, 111-4 of the Penal Code, 1 bis of law No. 68-678 of 26 July 1968 amended by law No. 80-538 of 16 July 1980 (articles 1134 du code civil, 111-4 du code pénal, 1 bis de la loi n° 68-678 du 26 juillet 1968 modifiée par la loi n° 80-538 du 16 juillet 1980)
Greece
Court Decision No. 9460/1999 (9460/1999 ΕΦ ΑΘ), by Michael G. Rachavelias
Banking; sending a card and electronic signature (Personal Identification Number (PIN)) through the national post; loss of items; liability for subsequent unauthorised withdrawals
Italy
Judgement No. 11445 of 6 September 2001 (Cassazione civile, sez. lav., 6 settembre 2001, n. 11445), Supreme Court of Cassation – Work Section
Admissibility of digital documents; probative value of electronic or computer systems
Poland
Sygn. akt I KZP 2/10, S?d Najwy?szy – Izba Karna w Warszawie (Supreme Court – Criminal Chamber in Warsaw), with a commentary by Dr Arkadiusz Lach
Authority to intercept telephone communications; admissibility of the records in other proceedings; refusal to give opinion on this subject because of lack of relevance
Romania
Decizia nr, 1258 dated 8 October 2009, Curtea Constitu?ional? a României (Constitutional Court), translated by Bogdan Manolea and Anca Argesiu
Constitutionality of law 298/2008 regarding the retention of the data generated or processed by the public electronic communications service providers or public network providers
Case Notes:
England & Wales
Donald Blaney v Person(s) unknown, (not reported), Thursday, 1 October 2009, Lewison J ChD, by Matthew Richardson
Intellectual property; passing off; copyright; moral rights; injunction; service by alternative means; CPR 6.27; internet; anonymous author
Germany
22.09.2009, 1 K 365/09.TR, by Dr Martin Eßer
Right to appeal; electronic means; administrative proceedings
Germany
14.01.2010, VII ZB 112/08, by Dr Martin Eßer
Appeal by e-mail; signed with a qualified electronic signature; verification of the signature
Singapore
Joseph Mathew and Another v Singh Chiranjeev and Another [2009] SGCA 51 (on appeal from Singh Chiranjeev v Joseph Mathew [2008] SGHC 222), by Bryan Tan
Sale of property; exchange of e-mail communications accepting offer and price; cancellation of contract; whether binding agreement
Singapore
Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125, by Bryan Tan and Lee Heng Eam
Civil Procedure; discovery of documents; electronic discovery; Practice Direction No 3 of 2009; electronic discovery protocol; good faith collaboration; opt-in framework; who to apply; whether necessary to order; consideration of factors in paragraph 43D; reasonable search; key words; discovery in stages; providing electronic copies of electronically stored documents in lieu of inspection
Slovenia
I Ips 7/2009, prepared by Kristina Brezjan (student, Law Faculty of the University of Maribor) and reviewed by dr. Liljana Selinšek
Mobile telephone and SIM card; data of the incoming and outgoing calls of the appellants telephone number and of the base stations; whether illegally obtained evidence
Book report
Stephen Mason, general editor, Electronic Evidence (2nd edition, LexisNexis Butterworths, 2010)