Having already analyzed the general aspects of the use of technological means and the difficulty of producing evidence, we will now examine several devices and ways of communicating, and a standard procedure to obtain strong evidence. In any event, each case must be analyzed in depth with the assistance of a specialized attorney.
It should be remembered that for all cases in which the counterparty recognizes the veracity of the evidence submitted, there is no controversy and the evidence is valid. Below, we will discuss the cases in which one of the parties does not acknowledge the evidence (this is what happens in most of the cases for convenience or as a court strategy). It is also necessary to remember that in all cases, both the authorship and the content of the evidence must be proved. Furthermore, the choice of the means of communication used when it is legally relevant information is of vital importance, depending on whether we want or we do not want the evidence to be proved later.
Fax
Nowadays, it is generally obsolete, but we found it interesting to add it to the list in order to show that this means should not be used for legally relevant information as it is not suitable. It is almost impossible to provide evidence through this means: the reception cannot be verified (there is no reliable record of it), nor can the content (it can be altered).Furthermore, a calligraphic expertise cannot be carried out (it is similar to a photocopy). Finally, the storage in certain circumstances, such as heat and humidity (which sometimes is inevitable), can make the evidence completely illegible.
Text Messages
This means is widely used by anyone who owns a mobile phone and it is fairly easy to prove. It is necessary to gather as much information as possible about the line (number, telephone company, name on the phone bill, etc.) and request informative evidence of the text messages exchanged between the person and other telephone number in order to include them in the file. To avoid the claim for the right to privacy of individuals, the information requested must be brief and for a determined length of time. It is most likely that if the evidence is requested in a generic form in order to see the text messages exchanged of a line during a certain month, the counterparty’s attorney would refuse and the evidence would be denied.
Another less effective form of evidence can be the seizure of the mobile phone, which nowadays has much more information than just the text messages sent over the mobile network. The problem is that on the slightest news about this type of procedure, the user can delete all the data, replace the phone (it can be saved if you know the brand, model and/or IMEI code), etc. In any case, a mobile phone contains so much private information that a judge would rarely approve this type of evidence.
Instant Messaging (Blackberry, Messenger, Whatsapp, and others)
It is another means by which a lot of information is exchanged, but in these cases the evidence is much more difficult. While there is always the option to request the seizure of the device, in these cases the informative evidence is virtually impossible. Most of these services have servers which are not in the country; the companies responsible for them are not registered in Argentina, so it would be extremely difficult to notify such companies, and even more difficult to obtain a favorable response from them.
Publications on the Internet:
General
The procedure for this case is the same as was discussed in the previous article regarding the responsibility of Internet browsers. It is important to place on record that the publication exists at a certain date and address. In case of denial, the attorney may support what was established by the notary requesting informative evidence to the companies responsible for the servers storing the data (although they have no obligation to have the information, as it may have been deleted).
It is important to differentiate between the possibility of evidence of the sites registered in Argentina and the sites registered abroad. In the case of national sites, the information can be found in www.nic.com.ar, where you can find the name of the responsible for the title and the address. This person can be demanded to remove the content of the site and pay the corresponding compensations.
For sites whose managers are not registered in the country or do not have local branches, the evidence is more complicated, and the notarial procedure is almost the only option. Another attempt would be a notification through Registered Letter or the request for informative evidence once the trial is initiated, but it would be rare to obtain a favorable response.
Forums
This is another tool which can give rise to statements and contents that damage a person’s image. In Argentina, one of the most known forums is Taringa (which has a case still pending because it served to link users with download sites of content protected by intellectual property rights; its liability is similar to the one of the browsers discussed in the previous article).
In these platforms, users can share whatever they want without prior censorship. Thus, if any of these users intends to damage another person’s image or honor, this is an ideal tool. In some cases (such as Taringa), the moderation of these sites has improved significantly helping to create a filter against harmful publications. However, this is not so in all cases.
The procedure for the evidence initially is the same as the general procedures, but it has the advantage that, in this case, there is someone responsible for the site to demand in order to obtain reliable data of the user and even make it jointly responsible for such publications in case they do not retract immediately.
Videos
In this case, the general procedure is carried out before a notary, but with the assistance of a technician who can download the content correctly, ensuring it is not modified. Then, it must be added to the file in a closed envelope as recommended at the end of the previous article.
Nowadays, it is one of the most used means to communicate all kind of information. It is an almost inexhaustible source of evidence, but to be accepted in a judicial file, it must be very well produced. In this case, a printed version of the exchanged messages must be submitted. The counterparty’s attorney may not acknowledge either the reception or the content of the e-mail, and in each case, the way of proving it will be different.
– Reception: informative evidence must be requested to the company owner of the domain in which the mail account is located. Information about the owner of that address (which may be or may not be true) must also be requested, as well as the IP addresses from where it was accessed, if possible of the dates and times in which the emails to be used as evidence were sent. These IP addresses are assigned to an Internet Service Provider (ISP), which in-turn has a particular user assigned; you ask the ISP for information about the real owner of the Internet service. If there is a coincidence between the owner of the mail account and the owner of the Internet service, the delivery of the email by that person can be considered proven, but not the content. If there is no coincidence, it will be the attorney’s job to link them in order to justify that the email was sent or received by the party.
– Content: since what needs to be proved is the delivery or reception of the email in the counterparty’s PC, the only way to do it is with the seizure of the PC from which the email was sent or received. However, this bears the risk that if the counterparty finds out, the information can be deleted. In the event that this occurs (unless the deletion is done by a professional), it is always possible to collect some evidence that shall have to be proved with expert evidence (it must be requested in a timely manner). In any case, there are extra complications when carrying out the seizure; for instance, the PC may not be in that place (especially laptops), not knowing exactly which one is it, etc. In that case, it cannot be proved. Proving the content does not prove the authorship, as someone may have accessed the PC and sent the email from the counterparty’s account. In any event, this production of evidence provides circumstantial evidence, and some cases are serious (such as the use of the company’s email box).
Social Media
Nowadays, it is one of the most used -though not carefully- sources of information. The most common ones in our country are Facebook and Twitter, and they contain the most diverse information in several formats. Although many times they are used to link to other websites, other times some information is uploaded to the user’s server (such as “status”, “twit”, “note”, images, videos, etc.), which may be included as evidence in an file. This is of vital importance in cases of “cyber bullying” which cause both moral and psychological damage to the victim and, in some extreme cases, have even caused suicides.
As explained in the case of the email, to prove that a person posted something, it is necessary to determine its content and veracity, as well as have circumstantial evidence about its authorship. The steps to follow are similar to those mentioned above; while the user profile data is usually not accurate, ISP data is. Linking the ISP data to the account and the password security level to obtain the most reliable evidence possible about the source of what needs to be proved will depend on the attorney’s ability.
Facebook is particularly interesting, since it is the most used social media and it has multiple platforms. In the case of libelous statements or harmful content, the standard procedure is the same as for general publications on the Internet: certify with a notary that the content was on the web and in such account with such URL address. This allows subsequent modifications to be saved. It is important to bear in mind that a judge will rarely make someone liable for damages before this person is requested to delete the publication.
As always, we remind you that the present article intends to provide an overview on the topics, and in the event you have specific questions or concerns, it is important to consult an expert.