Electronic evidence in the civil and labour sector

Developments in the world of law have made possible the introduction of new sources of evidence through different mediums of writing, such as computers, video and telecommunications.

Technological advances have led to the protection of electronic communications. In Spain, its defence is guaranteed through double protection: by the Organic Law on civil protection of the right to honour, personal and family privacy and image in the civil sector; and by the Organic Law of the Penal Code, which regulates the interception of communications between individuals, physical persons or corporations, in the criminal sphere.

The Spanish Code of Civil Procedure states in the second paragraph of Article 299 the types of electronic evidence admissible in law, Also accepted, as provided in this Act, are the means of word, sound and image reproduction, as well as the instruments for filing and knowing or reproducing words, facts, figures and mathematical operations carried out for accounting or other purposes that are relevant to the proceeding.

Meanwhile, labour law also supports the use of this type of evidence as recognized in Article 90 of Law 36/2011, of 10 October, regulating the social jurisdiction. This article recognizes that: The parties, after justification of the usefulness and relevance of the proposed measures, may use whatever means of evidence that are regulated by the Law to prove the disputed facts or evidence needed, including word, image and sound reproduction procedures or file and data reproduction, which must be provided through an appropriate medium, and making available to the court the necessary means for reproduction and subsequent recording in the case.

Evidence on trial

Electronic means can be used as supporting evidence in a trial. However, the value of the evidence, regardless of whether its contents are public or private, will depend on whether these documents have been manipulated or not. The opposing party may challenge the documents, making expert evidence necessary to determine their authenticity.

Sometimes, it is possible that electronic evidence cannot be provided directly due to organizational and instrumental issues. Therefore, it is recommendable to print the stated evidence to present it as a reference document, indicating the authentic and original file (Article 265.2 LEC) and thereby facilitating accessibility to the judge.

Problems  arising from the use of electronic evidence

The use of electronic evidence is not without problems. The first question that poses some difficulty is the lack of a protocol on procedures for the collection, storage and analysis of electronic documents, provoking the obligation to justify and prove the authenticity and integrity of the evidence. The second problem is that electronic evidence is often fragile and can be easily modified, so it is advisable to authenticate the evidence, either through an application to the Judge or through a prior process by a public notary.

Both problems show that there is no overall reliability of electronic evidence and, where their use is raised in court, the degree of uncertainty about the electronic evidence’s acceptance is very high. This situation requires an immediate solution because progress and technological advances inevitably lead to a much more digitized world.

Carlos Hernández & Nicolás Melchior

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