Admissibility of Social Media Messages as Evidence before Court of Law

1. ADMISSIBILITY OF SOCIAL MEDIA MESSAGES AS EVIDENCE BEFORE COURT OF LAW https://taxguru.in/corporate-law/admissibility-social-media-messages-evidence-court-law.html Sutanuka Sinha Ray INTRODUCTION In this era where cyber space and digital environment has became one inextricable factor, the nature of evidence related to any case is also evolving to be digital. And the Indian Evidence Act of 1872 has laid down a comprehensive procedure which explains which evidences to be used as valid evidence. The recent controversy related to the case of Aryan Khan has once again stimulated the burning topic regarding the admissibility of the WhatsApp messages as evidences under the Indian Evidence Act, 1872. While defining the admissibility of electronic evidence before the court, the Act has stated under section 65B(1) that, “Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.” Along with that 65B(4) requires a certificate to be produced that inter alia identifies the electronic record containing the statement and describes the manner in which it is produced, and gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, either by a person occupying a responsible official position in relation to the operation of the relevant device, or the management of the relevant activities, whichever is appropriate. Therefore the electronic messages to be considered as a secondary form of evidence which is actually the copy of the computer record unless the device along which such is presented as evidence. Then only that can be considered as a primary source of evidence. Last two years have witnessed some landmark cases which have eminently established the present stand of the electronic evidences. On October 3 Narcotic Control Bureau has arrested Bollywood Actor Shahrukh khan’s son Aryan Khan from a cruise in Mumbai for the uses of Drugs in the cruise. On a prima facie basis only WhatsApp messages were obtained by the NCB officials to submit as evidence against the accused. So, the question that has arisen before the court regarding the evidentiary value of those downloaded WhatsApp messages. Presently,

2. those electronic messages are considered as secondary evidence. APPLICATION OF THIS OVER THE YEARS Over the years a series of questions have arisen based on the evidentiary value of electronic evidences. First one being,the requirement of production of the certificate under sec.65B for the initial admissibility of electronic record as secondary evidence. Initially there was an ongoing conflict regarding the necessity of production of the certificate if the original record is already produced before the court. So the Supreme Court of India has resolved this conflict efficiently through a series of judicial pronouncement. Anvar P.V. v P.K. Basheer[1] By this case the Supreme Court held in unequivocal terms that an electronic record by way of secondary evidence shall not be admissible as evidence unless the requirements of Section 65-B are satisfied. Therefore the production of the certificate was made mandatory. But a lot of challenges came before the court regarding the possession of actual deice from which the evidence was collected. So, the case of Shafi Mohammad has primarily answered the burning questions. Shafhi Mohammad v. State of Himachal Pradesh[2] This case can be considered as one of the prominent cases which have clarified the interpretation of the electronic evidences. The Apex court had clarified that production of the certificate is merely a procedural aspect. It got further observed that requirement of certificate will only applicable to the person who has control over the device and hence in a position to provide with the said certificate. The party who is not in the possession of the device, from which the document is to be produced, cannot be expected to provide such a certificate under section 65B(4). Therefore in certain circumstances, the certificate under 65B(4) is not mandatory. After this case a dilemma appeared before while ruling the cases related to electronic evidences. Then finally the case of Arjun Pnditrao had clear the stand relating to this. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others[3] A three judge bench of the SC answering all the questions rose through the previous case and held that the requirement of a certificate under Section 65B(4) of the Indian Evidence Act, 1872 is a condition precedent to the admissibility of electronic record in evidence. The Supreme Court while answering this important issue has finally settled all the dilemmas, while sustaining the law laid down in Anvar’s case and held that requirement of a certificate is essential to the admissibility of evidence by way of electronic record under Section 65B of the Act. Electronic evidence will be considered as an inadmissible in the court under section 65B of the act, if any of the parties produce it without a requisite certificate. The court also answered that in the case of Shafi Modmd, the division bench had relied on the premise that an individual not having access to a device with the original record cannot produce the said certificate under S 65B(4), however, such a premise is wholly incorrect. Evidentiary Value of Messages exchanged in social media Second question that often comes before the court is the evidentiary value of messages exchanged in Social Media. Since the popular social networking site has become a verb, so the credibility of the messages exchanged in the platform should also be considered.

3. Initially considering the evidentiary value of the WhatsApp messages Delhi high court in the case of Girwar Singh v. CBI[4] held that the WhatsApp messages as an evidence was inadmissible. Then the landmark judgment of Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another[5] mentioned WhatsApp conversations as evidence, stating that “the WhatsApp messages, which are virtual verbal interactions, are a subject of evidence with regard to their meaning and substance to be established during the trial by evidence in chief and cross-examination.” But this evidence will be subjected to “cumulative deciphering” of the content contained in the messages. Admissibility of the media evidences Exchange of the media is also very common way to communicate apart from messages of social media. Various social media platforms offer sending voice clips, pictures, audios, videos as a form of communication. These devices have helped to open a new era of jurisprudence. The portable devices are very helpful in recording things and whether these electronic recordings (or a voice recording) are, from the point of view of the evidence, admissible or not. So, the cases are flooded with the question that will those be considered as valid evidence and will that be admissible before the court of law? The answer will be yes, provided the genuineness of the media. To prove the genuineness three factors should have to be proved. Firstly, the nexus between the media and the case. Secondly, how the media has been stored. Lastly, the period till which the record has been kept. So, the factors are to some extent identical of the factor to take into consideration for the exchange of social media messages. In recent years various courts of the country have given approval, when it comes to the admissibility of the electronic evidences. But if we can track down, the admissibility of the taped evidences has been taken into consideration since 1985. In the case of Ram Singh & Ors vs Col. Ram Singh[6] few conditions were laid down b the court: The voice of the speaker in the recording must be duly recognizedby the people who were making the recording or the voice of the speaker in the recording whose admissibility is in question must be recognized by anyone involved in the case. The recording in question must be authenticand this has to be proved by the person presenting the evidence through sufficient means. The whole conversation will have to be presentedbefore the court. No tampering or erasing of even a microsecond is admissible. The court looks into the whole conversation as one and decides according to it only. The said statements must be relevantand in accordance with the facts of the case. The recorded device in which the voice recording is stored must be sealed and kept in safe custody. Voice should be clear and without any disturbance. When it comes to the electronic records or any form of media, the Indian Evidence Act has given enough emphasis on the source of the fact. Hence, if we want to find a concrete solution to this question the answer will simply be the satisfaction of the condition as provided in the 65B of the Evidence. Any information that is stored in an electronic record by using the magnetic or optical media with the help of a computer can be considered as justified if it satisfies all the conditions mentioned in the section. In case all the conditions given in the section gets justified then the recordings become admissible to be processed as evidence in courts. Challenges relating social media as evidence With this exceptional expansion of the technology in this decade our life has totally got depended upon the cyberspace and technology. Similarly a plethora of information is stored in our phones. And in recent years the

4. social media is collecting a lot of electronic data relating to various aspects of our life, and social media is where individuals express their sentiments and pointless daily activities. In a way our daily activities has been stored by several social media platform which eventually is use to control our next social media activity. We have become a product for these platforms, where anything can be created and modified. Therefore the primary challenges which often come up are : > The accuracy of digital documents – The manipulation and modification of electronic documents is one of the easiest jobs in the internet. Anything and everything can be altered. So taking into consideration that aspect, the accuracy of those documents as evidence cannot be fully adopted. > Information on social media sites:Because of the evident infinite number of individuals that use social networking sites such as Facebook, Instagram, Myspace, and LinkedIn, content which are created that is beyond the reach of any single person or any organisation. In furtherance, courts usually apply a higher standard to the verification of information which is obtained through social networking sites only because there are no limits on who can create a profile. As anybody can create a social network profile anonymously, and a multiple number of accounts can be created by an individual, the courts cannot always attribute a single message to the person who controls the site. It is burdensome to determine who wrote the post since it can be done on a public computer, such as one at a library or a hotel. > A blurred space between the admissibility of primary and secondary evidence: The practical challenge that appear is the the boundary between primary and secondary kinds of evidence by integrating all sorts of computer proof under the scope of primary evidence. Because the data derived from computer- generated records is complicated and difficult to create in physical form, a provision has been established for it. As a consequence, if the word document is the original, a printout of the same might be considered as secondary evidence. It should be emphasised, however, that producing a word document in court without the use of printouts or CDs is very difficult. Hence, to combat all these challenges establishment of a regulatory framework is all that required, which will address numerous legal concerns in multiple countries, and consider apparent future challenges. The Present Stance Information obtained from the social media handle of the accused can be quite helpful to take the case into proper direction. In recent years we have seen starting from Rhea chakrobarty’s case to Aryan Khan’s case NCB’s sole evidence was communication exchanged in social media. It played quite a significant role during the whole investigation process. However, we must consider the fact that social media data is easily manipulated and altered, the court must be aware that the evidence presented by the parties might be faked and manipulated. In addition, while gathering evidence, investigators must bear the idea of “right to privacy” in mind. This is another fundamental aspect of any case. Unlike the traditional investigation, the investigator has a very little or no influence over the investigation over the social media. This can be a major legal red flag since social media evidence, like conventional evidence, must be obtained in a controlled and rigorous forensic manner. This particular aspect of collecting and analyzing social media data suffers scarcity of court-validated digital forensic tools. Hence in the conclusion it can be inferred that proper digital tools along with establishment of efficient framework to regulate the collection of digital evidence is urgently required to deal with cases more competently. In the era where everything is online and where cyberspace is our life this mechanisms are highly

5. solicited for the upcoming bearers. [1] Anvar P.V. v P.K. Basheer, (2014 10 SCC 473) [2] Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 [3] Arjun Panditrao Khotkar v. Kailash Kushanrao, Civil Appeal Nos. 20825-20826 Of 2017 [4] Girwar Singh v. CBI 2017 (5) ALJ 677 [5] Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another AIR 2020 SC (Civil) 738 [6] Ram Singh & Ors vs Col. Ram Singh, 1985 SCR Supl. (2) 399 The author Sutanuka Sinha Ray has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.