Evidence Law and Electronic Records

By Emmanuel Narokobi

I attended an interview yesterday with one of our website clients, the Constitutional and Law Reform Commission (CLRC). The interview was in relation to a review CLRC were conducting on the Evidence Act 1975. The Terms of Reference for the review were as follows:

  1. Whether and how the laws of evidence can or should be modified to permit the proof of (a) business records; and (b) electronic records and communications (email, etc);
  2. If the laws of evidence are to be modified, what should be done and how best should that be achieved;
  3. If the laws of evidence are to be amended, propose and recommend the new provisions or if not enact a new act; and
  4. Whether and how any relevant associated laws and practices should also be modified or amended to achieve the reforms that may be proposed.

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So for my contribution I had to answer a series of questions which revolved around the scope of definitions to accurately cover electronic records for business, my personal experiences with electronic records and my suggestions and thoughts. It was a fairly lengthy interview so I’ll just list the 2 main issues in brief.

Currently the definition of a document in the Act is restricted to “...a book, plan, paper, parchment or other material on which there is writing that is marked with letters or marks denoting words or any other signs capable of carrying definate meaning to persons conversant with them, and includes part of a document“. Obviously that would have to be widened to cover emails and documents in it’s various formats, e.g. text files, word documents etc. Image files and even text messages.

I also suggested that perhaps how electronic information is handled had to be looked at further beyond just a PC being involved. Right from the start the Evidence Act in Sec.64(1) in relation to ‘computerized information‘ describes a computer as ‘..a device for storing and processing information‘. What wasn’t covered in the above description was how information is also retrieved. This is obviously important now with devices such as mobile phones which would be able to capture, store and retrieve information without any contact with a PC.

I’ll list all the questions given to me later when I get some time, but this is definitely the way to go for our legislators in terms of looking to protecting people in business especially with the ever increasing dependence on PC’s and other electronic devices to conduct business. Although the above is limited really to the just the Evidence Act, it may be the start to more reviews where electronic communications definitions need to be broadened in legislation to protect people and businesses.

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