Draft Convention on Electronic Evidence
The Draft Convention was published in the Digital Evidence and Electronic Signature Law Review (2016) 13 S1–S11 (the online version includes further information relating to the process by which it was written).
Summary
The Draft Convention is the first treaty dealing with the status of electronic evidence, covering civil and criminal proceedings, the investigation and examination of electronic evidence, and general provisions regarding the recognition and admissibility of electronic evidence from foreign jurisdictions.
Convention on Electronic Evidence
London,
Preamble
[The States signatory hereto],
Considering that the aim of the Drafting Committee is to encourage judges and lawyers to appreciate the concept of evidence in electronic form;
Recognising the value of promoting international co-operation with [the other States that are Parties] to this Convention;
Convinced of the need to pursue, as a matter of priority, a common policy on electronic evidence;
Conscious that the profound changes brought about by the machine and software code (collectively ‘digital systems’) have altered the means by which evidence is authenticated, in that the medium and the content are no longer bound together as with paper, and that the rules established for paper do not always apply to evidence in electronic form;
Concerned by the risk that electronic evidence can be misunderstood and misinterpreted;
Recognising that evidence in electronic form has unique characteristics that are significantly different to paper and other objects, which raise complex questions about the integrity and reliability of data in electronic form;
Recognising the need to facilitate the co-operation between States for the proper receipt, handling and authentication of electronic evidence;
Believing that it is in the interests of justice to provide for fairness in legal proceedings;
Have agreed as follows:
Part I – Use of terms
Article 1 – Definitions
For the purposes of this Convention:
‘adjudicator’ means any person that is lawfully appointed as a judge, arbitrator or to any other role that requires the holder of the office to act in a judicious and unbiased manner;
‘attribution’ means the assigning of responsibility for or tracing the origin of an act purported to have been performed or committed using or through a computer device, system or network;
‘authentication’ means the process by which any electronic record, document, statement or other thing is proven to be what it claims to be;
‘computer’ means any device capable of performing mathematical or logical instructions;
‘court’ means any international court, national court, statutory arbitral or other tribunal, board or commission according to national law of the contracting state;
‘electronic evidence’ means evidence derived from data contained in or produced by any device the functioning of which depends on a software program or from data stored on or communicated over a computer system or network;
‘electronic record’ means data that is recorded or stored on any medium in or by a device programmed by software code and that can be read or perceived by a person or any such device, and includes a display, printout or other output that represents the data;
‘device’ means any apparatus or tool operating alone or connected to other apparatus or tools, that processes information or data in electronic form;
‘digital’ means anything that relies on technology based on a binary system or any future development or replacement technology of the same;
‘digital evidence practitioner’ means a person who is appropriately qualified, and where the law requires, authorized, to investigate and examine evidence in electronic form;
‘legal proceeding’ means any formal procedure that takes place before any court, national or international, a statutory arbitral or other tribunal, board or commission according to national law and charged with legally defined duties and obligations, or any other formal legal process;
‘metadata’ means data that describe other data;
‘program’ means any set of instructions stored in a machine-readable format that can be used to perform a function in a repeatable and reproducible manner;
‘relevant legal proceedings’ means the legal proceedings for which data in electronic form is requested under a Mutual Legal Assistance Treaty or any other bilateral or multilateral instrument;
‘tool’ means any device or software program that can be used to identify, secure, examine and analyse electronic evidence.
Part II – Status of electronic evidenceArticle 2 – Admissibility of electronic evidence
1. Evidence in electronic form shall be admitted into legal proceedings.
2. Article 2(1) does not modify any existing national rule that applies to the admissibility of evidence, except in relation to the rules relating to authenticity and best evidence.
Article 3 – Agreement on the admissibility of electronic evidence
1. Unless otherwise provided in any law operating in the relevant jurisdiction, an electronic record or document may be tendered, subject to the discretion and rules of the court, if the Parties to the proceedings have expressly agreed to its introduction.
2. Notwithstanding the provisions of Article 3(1), an agreement between the Parties on the admissibility of an electronic record or document does not render the record admissible in a criminal proceeding if at the time the agreement was made
Article 4 – Authentication of electronic evidence
1. The party seeking to introduce electronic evidence in any legal proceeding has the burden of proving it is what it claims to be.
2. The matters set out below are to be considered when assessing that evidence in electronic form is what it claims to be:
(a) The data (both the content and associated metadata) relied upon in any legal proceedings can be shown to be an accurate representation of the prevailing and existing state of those data at the time relevant to the legal proceedings.
(b) If the data have changed from the moment they were identified (and possibly seized) as potential evidence in legal proceedings, there is an accurate and reliable method of documenting any such changes, including the reasons for any such modifications.
(c) The continuity of the data between the moment in time the data were obtained for legal purposes and their submission as an exhibit in legal proceedings can be demonstrated.
(d) Any techniques that were used to obtain, secure and process the data can be tested and shown to have been appropriate for the purpose for which they were applied.
(e) The technical and organizational evidence demonstrates that the integrity of the data is trustworthy, and can therefore be considered reliable and complete (insofar as the data can be complete), which in turn will depend on the circumstances surrounding the data at the time they were identified as being potentially relevant in legal proceedings.
1. In any legal proceeding, where any printout, document or other physical manifestation of the result or output or appearance of any electronic process, record or any other representation of that process or record has been manifestly or consistently acted on, relied upon, or used as the record of the information represented by or stored on the printout, the printout or other physical manifestation shall be considered the best evidence and admitted as evidence subject to satisfactory proof of its integrity.
2. Where the output of a process is relied upon, and it remains in electronic form, the best evidence rule remains, subject to the provisions of Article 4(2).
3. Article 5(1) and (2) do not modify any domestic rule that applies to the admission of evidence.
Part III – Investigation and examination of digital evidence
Article 6 – Digital evidence practitioner
1. Since digital evidence practitioners are required to make informed judgements about the appropriateness of the tools and techniques they use to secure and preserve electronic evidence, the Parties shall establish minimum standards for their formal education and training.
2. A digital evidence practitioner must be able to provide, in compliance with the necessary court and legal requirements:
(a) an analysis of their findings, setting out the scientifically agreed basis upon which their judgement is based; and
(b) shall identify and explain any data that appear to be inconsistent with their findings.
3. The primary duty of the digital evidence practitioner is to the court.
Article 7 – The use of good practice guidelines for electronic evidence
1. The Parties to the Convention shall establish a Forum for the development of good practice and guidelines in the acquisition, handling and otherwise processing of electronic evidence in the form of a set of agreed common requirements.
2. The forum shall:
(a) Include participation from at least two thirds of all Parties to the Convention.
(b) Establish its own rules of procedure and may establish subcommittees to consider specific issues.
(c) Be funded on a basis to be agreed.
(d) Submit the first edition of its agreed common requirements to the Parties within two (2) years of this Convention coming into force for subsequent adoption by the Parties.
(e) Produce updates and amendments to the agreed common requirements as deemed desirable and necessary by the Forum and in any case every two years, or a statement that an update is not currently necessary.
3. Except where incompatible or inconsistent with national legislation, codes or procedure, the Parties to this Convention shall implement agreed common requirements on the acquisition, obtaining, packaging, processing and examination of electronic evidence.
4. The agreed common requirements shall be:
(a) Drafted by reference to the guidelines established by the Forum.
(b) Adopted within [time period to be agreed] of accession to this Convention or within [time period to be agreed] of the publication of the first version of the agreed common requirements by the Forum, wherever is the sooner.
(c) Implemented by all national and government departments charged with legal duties and obligations involving the use, handling or processing of electronic evidence.
5. Any authority responsible for investigating a matter involving the criminal law shall apply and follow the agreed common requirements unless there are exceptional or extenuating circumstances where they cannot be followed.
6. Where, under Article 7(5) above, the agreed common requirements have not been complied with for exceptional circumstances, those circumstances and the reasons shall be recorded in writing at the time of the departure from the agreed common requirements and the written record shall be admissible in legal proceedings.
Part IV – Treatment of electronic evidence upon receipt
Article 8 – The requesting party
1. The provisions of this Article apply where the requesting party makes a request for evidence in electronic form to the sending party.
2. When the requesting party makes a request for evidence in electronic form, regardless of the mechanism by which the evidence is requested, the requesting party shall provide a legally binding undertaking in writing to the sending party to include the following:
(a) An assurance that the data shall be dealt with in accordance with how evidence in legal proceedings is normally dealt with in the requesting parties’ jurisdiction under the relevant legislation, procedural rules and rules of professional conduct.
(b) Copies of the data shall only be given to parties authorized to receive the data that are part of the relevant legal proceedings.
(c) Data provided under the provisions of Article 8 shall only be used for purposes related to the relevant legal proceedings.
(d) The sending party may waive the provisions of Article 8(2)(b). The terms of any such waiver shall be decided by the parties in a form and to the extent that they determine.
3. Notwithstanding the provisions contained in Article 8(2) above, all data in electronic form that is provided to the requesting party shall be the subject of all the relevant laws of the requesting party, including, but not limited to, confidentiality, the protection of data and the security of data.
4. The assurances provided by the receiving party under the provisions of Article 8(2) above may be provided in physical or electronic form as is agreed between the parties.
5. The provisions of Article 8(3) shall also apply to any other receiving party authorised to receive the data that are part of the relevant legal proceedings.
Part V – General provisions
Article 9 – Admissibility of electronic evidence from other jurisdictions
1. Where electronic evidence originates in another jurisdiction, its admissibility is not impaired if the electronic evidence is proven in accordance with Article 3 or the authenticity of the evidence is otherwise demonstrated.
2. The provisions of Article 9 do not modify any domestic rule that applies to evidence in electronic form obtained contrary to relevant human rights legislation or data protection legislation.
Article 10 – Recognition of foreign electronic evidence and signatures
1. In determining whether or not, or to what extent, data in electronic form are legally effective, no regard shall be had to the geographical location where the data were created or used or to the place of business of their creation, provided those data are located in the domestic jurisdiction.
2. Where the electronic record or document is located in a foreign jurisdiction, Article 10(1) above does not apply unless –
(a) the party who adduces evidence of the contents of an electronic record or document has, not less than 14 days before the day on which the evidence is adduced, served on each other party a copy of the electronic record or document proposed to be tendered, except where exceptional, urgent and exigent circumstances apply;
(b) the court directs that it is to apply; or
(c) there is an international treaty in effect establishing recognition of electronic records or documents or of electronic signatures located in the foreign jurisdiction.
3. Notwithstanding the provisions of Article 10(2)(a) above, what constitutes exceptional, urgent or exigent circumstances for the purposes of this Article is a matter for the court seized with the matter.
4. Notwithstanding the provisions of Article 10(2) above, an adjudicator may admit data in electronic form that are located in a foreign jurisdiction if domestic law so provides.
1. Where the meaning of a word or phrase in this Convention differs from the meaning of a word or phrase defined in any information technology literature, the adjudicator shall interpret the meaning in accordance with the domestic law on the interpretation of words and phrases.
Article 12 – Entering into force
1. The Convention shall enter into force on the thirtieth day following the date of deposit with the [name of sponsoring organization].
2. For each State ratifying or acceding to the Convention after the deposit of the [third] instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.
Explanatory notes to the Draft Convention on Electronic Evidence
1. The main objective is to pursue a common policy towards electronic evidence, taking into account the differences in the treatment of evidence in individual jurisdictions. This Convention does not seek to harmonize judicial systems. The aim is to encourage judges and lawyers to more fully understand the concept of electronic evidence in the interests of providing for fairness in legal proceedings; to promote adequate procedures in legal proceedings; to implement appropriate legislation where necessary, and to promote international co-operation.
2. Part I Article 1 provides a number of definitions. The aim is to provide definitions that transcend legal cultures. Although the definition of ‘authentication’ does not include reference to relevant international or domestic guidelines and standards, it does not preclude the use of such guidelines and standards in demonstrating authenticity. The definition of ‘electronic evidence’ is taken to be synonymous with the term ‘digital evidence’.
3. Part II considers the status of electronic evidence, covering the admissibility of electronic evidence (Article 2 and Article 3), authentication (Article 4) and best evidence (Article 5).
4. Article 2 aims to provide minimum rules to the admissibility of electronic evidence. The purpose of Article 2(1) is to prevent a party from seeking to exclude evidence in electronic form because it is in electronic form. Article 2(2) does not modify any domestic rule relating to the admissibility of electronic evidence other than in relation to authenticity and best evidence.
5. Article 3, regarding the agreement on admissibility of electronic evidence, is taken and adapted from the Commonwealth Draft Model Law on Electronic Evidence and Electronic Evidence: Model Policy Guidelines & Legislative Texts (Harmonization of ICT Policies, Legislation and Regulatory Procedures in the Caribbean, International Telecommunication Union Telecommunication Development Bureau, Geneva, 2013).
6. The provisions of Article 3(1) aim to permit the parties to a legal proceeding to agree on the authenticity of the evidence. The purpose of this Article is to simplify the legal process by reducing the time that might be spent in authenticating documents and records in electronic form that both parties rely on. There is no point in increasing the time (and costs) spent on unnecessary actions.
7. Article 4(1) deals with the process of proving that data in electronic form is what it claims to be. The word authenticity is used, even though this may be considered to be irrelevant and out-of-date. To establish whether an electronic record, document or other thing is proven to be what it claims to be, the tests regarding the integrity, reliability and completeness of the data and therefore trustworthiness is more important. It is for the adjudicator to assess the evidence before them to determine whether the data is what it claims to be. The term ‘authentic’ is used by many jurisdictions in other contexts, such as the provision of an ‘authentic’ record. The word ‘authentication’ remains, but it should not be taken to override the domestic methods of determining whether an electronic record, document or other thing is proven to be what it claims to be – nor does it refer to the ‘authentic’ record.
8. Article 4(2) was initially taken from Stephen Mason, Electronic Evidence (3rd edn, LexisNexis Butterworths, 2012), 4.21. Both the Commonwealth Draft Model Law on Electronic Evidence and Electronic Evidence: Model Policy Guidelines & Legislative Texts (Harmonization of ICT Policies, Legislation and Regulatory Procedures in the Caribbean, International Telecommunication Union Telecommunication Development Bureau, Geneva, 2013) provide for a presumption (the term ‘judicial notice’ is also used in some jurisdictions – this term has a similar effect to the presumption) that electronic evidence is ‘reliable’ or that a computer system or other similar device was ‘operating properly’. No lawyer or judicial authority has put any evidence forward to establish what ‘reliability’ means in relation to computers and computer like devices, or what ‘operating properly’ means. Because a minority of jurisdictions adopt this presumption in the absence of any evidence that such a presumption is justified, it is considered more appropriate to refrain from including such a presumption in the Draft Convention.
9. The provisions of Article 4(2) operate to require a party to demonstrate whether the data in electronic form is what it claims to be, and conversely, for the challenging party to cross examine to establish that the data is not an accurate presentation of what it claims to be.
10. Article 5 specifically refers to the common law concept of best evidence. The term ‘original’ has deliberately not been included in this Draft Convention. This is because the word ‘original’ has different meanings for lawyers and notaries, and also in different jurisdictions. The term ‘original’ is not helpful when analysing evidence in electronic form. This is because every item of data in electronic form is a copy. There can be no original.
11. Part III deals with the investigation and examination of electronic evidence in Articles 6 and 7.
12. Article 6 provides for the formal education and training of digital evidence practitioners. People that investigate, seize and analyse evidence in electronic form ought to be educated and trained through a formal process. This is in the interests of justice and fairness between the parties, and because evidence in electronic form is now ubiquitous and an every-day part of legal proceedings.
13. Article 7 provides for the creation of a Forum to develop appropriate guidelines or standards for the process of investigating evidence in electronic form. A number of guidelines exist at present. It is in the interests of justice that such guidelines are not only publicly available, but are developed by representatives from internationally respected bodies. By developing a set of internationally recognized guidelines, adjudicators will be better informed when assessing evidence in electronic form. The development of common guidelines or standards will also promote confidence in and acceptance of the quality of evidence especially where obtained in another jurisdiction.
14. Part IV provides for the transmission of data in electronic form between jurisdictions. The terms of Article 8 do not affect the provision of any Mutual Legal Assistance Treaty, bilateral or multilateral instrument, or of any other method of requesting evidence from a foreign jurisdiction. The purpose of this provision is to reassure the sending party that the evidence sent will be dealt with appropriately and in accordance with the norms of the receiving jurisdiction relating to evidence in legal proceedings. Some jurisdictions are wary of sending evidence without suitable provision for the security and the protection of the people mentioned in the data.
15. Part V deals with general provisions. In particular, Article 9 on the admissibility of electronic evidence from other jurisdictions attempts to deal with the difficult question of which set of legal requirements apply to evidence in electronic form – whether it is of the State in which the evidence is geographically located, or the State in which the evidence is to be submitted in a legal proceeding. Article 9(1) seeks to indicate that if the evidence is proven in accordance with the provisions of Article 4, the matter of the geographical location is irrelevant. Alternatively, an adjudicator can admit the evidence as being authentic where the authenticity of the evidence is demonstrated in some other manner that is accepted by the adjudicator.
16. Article 10 provides that evidence in electronic form that ostensibly originates in a foreign jurisdiction can be admitted, notwithstanding that it was not actually located in the domestic jurisdiction. The aim is to enable the admission into a legal proceeding of electronic evidence and electronic signatures that might otherwise not be admitted because of lack of formalities.
17. Although the provisions of Article 11(1) may appear to be open to interpretation, the clause mirrors many such clauses in legislation relating to electronic commerce and communications across the world. Article 11(2) deals with the inevitable disagreement between the meaning of words in a technical sense and a legal sense. When this occurs, it is for the adjudicator to determine the meaning in accordance with the relevant provisions in domestic law on interpretation. There has been no attempt to incorporate technical definitions into the Convention, because doing so might cause greater uncertainty than is intended.