Digital evidence is one more piece of evidence that can be provided in a judicial proceeding, therefore, it is one more means to prove the claims or confirm the existence and production of certain facts and to obtain a sentence duly based on certain and proven facts.
Technological advances have led to the existence of more and more different means and supports containing information. All the means of evidence provided must comply with the same rules which imply, among other things, being able to prove that the evidence provided is authentic, i.e. that it has not been falsified or manipulated. One form of control over the authenticity of the evidence is carried out by challenging it, which implies the need to request arguments that certify the authenticity of the evidence provided regardless of the probative value it may have for the judge.
In recent years, case law has been making pronouncements regarding digital means of evidence, establishing in judgments the criteria that must be taken into account for evidence to be admitted by the court and to form part of the proceedings. We refer especially to the Judgment of the Criminal Chamber of the Supreme Court 300/2015 of May 19, 2015, popularly known as the Tuenti Judgment.
Tuenti Sentence
https://www.poderjudicial.es/search/AN/openDocument/02349ba8f1bbc34c/20181126
In this ruling, conversations made through the instant messaging service Tuenti are provided. The way in which these conversations were brought to the proceedings was by means of printed files. It is clear that the conversations in printed documents could have been manipulated, and any challenge would have been inadmissible if it had not been possible to verify through the corresponding expert evidence that the content was unaltered.
It was not necessary in this case to carry out any expert evidence, since the victim made his account and password available to the court and the authenticity was confirmed by the victim’s interlocutor. Even so, it is indicated in this judgment that the manipulation of printed files is simple and can easily occur, in addition to the possibility of opening several accounts by the same person allowing them to pretend that a dialogue is taking place that in reality is a conversation with oneself.
In the Tuenti Judgment it is stated in relation to the challenge of digital evidence: “Hence, the challenge of the authenticity of any of these conversations, when they are brought to the case through print files, shifts the burden of proof to the one who intends to take advantage of their evidentiary suitability. It will be indispensable in such a case the practice of an expert test that identifies the true origin of that communication, the identity of the interlocutors and, finally, the integrity of its content.
In summary, once digital evidence has been provided in a judicial proceeding, the important thing is to be able to prove by any means of evidence the authenticity of the same, which is difficult to do if the original digital evidence has been removed.
The criteria established by the Supreme Court in the Tuenti Judgment have special relevance also for screen shots, and there is a great deal of minor case law on the matter.
Judgment of the Provincial Court of Malaga of October 3, 2016
https://www.poderjudicial.es/search/AN/openDocument/24b275bd3810e94a/20170216
The Judgment of the Provincial Court of Malaga of October 3, 2016 pronounces in relation to some screenshots with which some payments were intended to be accredited, indicating: “The screen print cannot even be assimilated to the electronic support of the bank transfers intended to be accredited, but what is most relevant for the purposes not only of its authenticity but also of its probative value is that it is a way of visualizing a unilateral act carried out by telematic means, so, given that unilateral nature, if it is challenged it is incumbent upon the party that presents it as a constituent fact of its claim to accredit the reality of the transfers,…. “In this case, the original bank documents were not provided, causing the payments not to be accredited.
Judgment of the Provincial Court of León of October 15, 2018
https://www.poderjudicial.es/search/AN/openDocument/6ef244337bab29e9/20181119
The Judgment of the Provincial Court of León of October 15, 2018 states, in relation to the screenshots, that it is a means of evidence admitted in law, but at the moment in which the same are challenged they lose their probative force and it is necessary to request evidence to accredit the authenticity of the same with the difficulty that this entails. In this case, we do not know if the lack of expertise of the lawyer or the impossibility of accrediting the authenticity of the documents, evidence in this sense was not requested, so, as indicated in the cited judgment, “the challenge of such evidence, which makes it incomprehensible that the defendant representation has not proposed evidence tending to accredit the attachment order and the identity of the orderer, which clearly is not inferred from the one attached by the defendant to its answer to the claim. Therefore, as regards its first claim, the claim must be upheld“.
Judgment of the Provincial Court of Alicante of October 15, 2018
https://www.poderjudicial.es/search/AN/openDocument/02349ba8f1bbc34c/20181126
Stricter is the Judgment of the Provincial Court of Alicante dated October 15, 2018, when considering that a simple screenshot has sufficient probative force to prove the allegations made: “Regarding the probative value of the screenshot” , we have already said in previous judgments that: “the claim to prove the payment of the corresponding compensation through the exclusive contribution of the colloquially known as “screenshot “, we have already said in this Ninth Section, that this is not feasible for not accrediting said documentary unilaterally preconstituted to the reality of the payment adduced.”
Conclusions
The jurisprudence of the Provincial Courts, in view of the caution demanded by the Supreme Court in relation to digital evidence, specifically screenshots, does not eliminate the probative value of the same if they are evaluated together with the rest of the evidence. Such evidence is very fragile when it is challenged and we may face a serious problem if it is not possible to provide any means of evidence, whatever type it may be, that allows us to prove the authenticity of the document provided and this may result in the dismissal of our claims.
