The admissibility of e-mail as evidence | The Daily Star
06:28 PM, March 18, 2017 / LAST MODIFIED: 06:40 PM, March 18, 2017

The admissibility of e-mail as evidence

Rapid modernisation and industrialisation have made the world dependent on new and modern technologies. The economic transactions have become paperless and documentations are now preferred to be digitised. E-mail or Electronic mail is the exchange of messages by telecommunication. E-mail holds information about the individual text composed by the sender, the sender’s user name and address, the recipient’s user name and address, the date and time of transmission and the subject matter of the mailing. It is a form of documentary evidence and can be admitted as evidence in court in the same way as other forms of documentary evidence are admitted. 

The admissibility of e-mail as electronic document is recognised by the Evidence Act 1872. However, as with other forms of evidence, the reliability of e-mail evidence will be subject to scrutiny. Otherwise, the trustworthiness of e-mail as evidence may be subject to further question. The integrity and authenticity of e-mail as electronic evidence cannot be used without any inquiry. Legal recognition and evidentiary value of e-mail is now a question regarding its application in civil as well as criminal proceedings.

The parliament passed a legislation named the ‘Information and Communication Technology (ICT) Act, 2006’. The ICT Act has been formulated to support the development of information and communication technologies in Bangladesh. It is intended to facilitate the application of information and communication technologies for building a tech-friendly society. The Act gave legal validity and recognition to electronic documents and digital signatures. The Act said that an act of any person shall be a crime if he willfully uses computer, e-mail or computer network, resource or system for the purpose of committing an offence and it can be admitted as evidence against him.

India has already amended its Evidence Act by including section 65B which gives a method to illustrate proof in backing of electronic records. The Supreme Court of India in Anvar v.  Basheer (AIR 2015 SC 180)  held that “the person requires only mentioning in the certificate that the same is to the best of his knowledge and belief which should be attached to the electronic record referring to which statement is sought to be given in evidence, when the same is produced in evidence. All these protections are taken to guarantee the source and validness, which are the two trademarks relating to electronic record. Electronic records being more prone to altering, modification, transposition, extraction, should be taken into account as evidence after careful examination as otherwise it can result in tragedy of equity.”

As our Evidence Act gives the power to the judiciary to take an opinion from experts upon a point of foreign law, science, art, or as to identity of hand writing, finger impressions, the opinions of that skilled persons are relevant facts. Likewise in case of e-mail also, expert opinion can be taken. However, there are still doubts about the reliability of e-mails as evidence since e-mails are often tampered with and complex scientific methods are required to determine the probability of such tampering. The Government should take proper steps to enhance the reliability of e-mail as evidence so that the judiciary with the help of the law enforcing agency can prohibit any one from arbitrarily using e-mail.

The writer is a Lecturer in Law, University of Asia Pacific.



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