Authored by Martin Geomin George Law Student from UPES Dehradun
With the emergence of the electronic era, there has been a need for the incorporate of electronic evidence in the judicial decision making. In this era of social media such as Facebook, pp, Instagram people use. There are several incidents where various crimes are committed through these social media. And in such cases, the contents in the social media are the primary evidence that changing the course of a decision.
Police officers and Investigating agencies in the recent times have produced messages that are posted by individuals on Facebook and Twitter and other social media platforms as key pieces of evidence. These pieces of evidence fall under the scope of the Indian Evidence Act. In the year 2016, during a press meet, Rajnath Singh (the Union Home Minister) recently accepted that the Indian government has developed a blueprint on social media so that they can effectively monitor the IS terrorist organisation about the undiscovered side of the world wide web which is more commonly referred as the Dark Web. This Dark web comes in the domain of the cyberspace which is a medium of communication that connects the world via the internet.
Evidentiary value of Social Media evidence
The evidence of social media is one form of digital evidence. When the majority of people consider social media as mobile applications such as Facebook, WhatsApp, Instagram, Telegram etc. the fact is it incorporates a much wider scope than these applications. There are websites and Links which are used to connect the people around the world and is no less than a social media platform, and several kinds of online fraud and crime are committed on a regular basis.
Under section 3 of the Indian Evidence Act, 1872 electronic evidence are allowed to present as evidence. These types of evidence are called a documentary evidence. But the unfortunate truth about social media is that it is easily modifiable, duplicable but it is also at the same time some social media applications are more sustainable and difficult to destroy the contents and easily available. Hence, there is a need for the court to verify the authenticity of the electronic evidence such as social media. So, the courts of justice need to verify its authenticity, relevance, validity before its application as evidence because it may be used against an innocent person. In the court of justice, a person is innocent until he is proven guilty.
Admissibility of digital evidence in Indian Courts
The Indian courts have recognized that the social media are vital evidence in the court of law. Its not only in India rather several other countries have also admitted the usage of digital evidence in their courts as they see its importance to establish a fair trial.
There are few provisions In the Indian Evidence Act such as section 3 which considers the admission of the digital or electronic evidence. In some portions of the provision, it read as all documents provided including the electronic records which are produced for inspection in the court, such documents shall be called documentary evidence.
Another provision such as section 65A and Section 65B in the Indian Evidence Act, 1872, that has also gone through an amendment under the IT Act, 2000.
The Section 65A which read as- There are special provisions to admit evidence relating to the electronic records. The contents of such electronic records shall be proved in accordance with the criteria specified in section 65B.
Whereas, Section 65B of the Indian Evidence Act specifies regarding the criteria of admission of the electronic records in the Indian courts. This provision lays down certain criteria for the admission of the electronic records, which is required to be satisfied.
The conditions are;
1. During the creation of an electronic record, the computer contains relevant information the computer’s output which contains relevant information that was produced from the computer that was used. It is pertinent to note that this information is stored or process information that are specifically carried over for a substantial period which was by means of lawful use of a computer.
2. The information that is contained in the manner of the electronic record and is used in the regular course of using the computer.
3. The information that is contained in the form of an electronic record is a copy of the original electronic record.
4. During the essential portion of the period, and when the computer is working normally, or even if it is not working properly, the computer will stop working for a period of time, but the electronic records will not be affected.
Moreover, in Section 22 of the “Indian Evidence Act” which was inserted by way of amendment, clarifies that when a verbal recognition of the content of electronic records is useful and can be admitted, that is, unless the authenticity of the electronic records generated is questionable, verbal recognition of the content of electronic records it is not related. And the problem occurs when the social media companies are not cooperating in court proceeding as they need to breach the customer commitments. In many cases, individuals who post on social media platforms such as Facebook or other platforms post by themselves, so there are very few problems. The problem is when the company has to provide access to the user data so that the party can prove their case and that it can identify the accused/felon. Social media applications such as Facebook is not an Indian company and so are several other social media platforms, hence getting information from Facebook representatives to hand over such information is proven to be very difficult.
Pieces of evidence from the Social media posts can be of vital importance and when we reflect on the purpose that such social media posts can have in a civil or criminal case it is incomprehensible. social media posts that have been previously used as we have seen before that if such post can be used to satisfy a person’s claim in the court of law, which in fact can be very hard to prove. It is pertinent that such social proof is reassuring that more than sufficient evidence is presented to admit and support the publication of the claim that is made on the basic rule of acceptability of any evidence in question. However, whether such evidence is relevant in a particular case, and if that particular principle is applied to that case where such social media post or evidence is involved, admissibility of such evidence will no longer be an issue in a court of law.
 Purnima Mathur, Impact of Social Media in the Law of Evidence, Legal Pedia, https://www.legalpedia.co.in/articlecontent/impact-of-social-media-in-the-law-of-evidence.html
 Ekta Sehra, Impact of Social Media in the law of evidence, Legis Scriptor, (Oct 29, 2020) https://www.legisscriptor.com/post/impact-of-social-media-in-the-law-of-evidence
 Ayush Verma and Neha Misra, Social media trials: a threat to the society and legal system, Ipleaders, (Feb 03, 2021), https://blog.ipleaders.in/social-media-trials-threat-society-legal-system/
 Tejas Sharma, Impact of Social Media in the Law of Evidence, BNW Journal, (Oct 17, 2020), https://bnwjournal.com/2020/10/17/impact-of-social-media-in-the-law-of-evidence/
 Mrudula Mohan, Admissibility of Social Media Posts or Messages, Criminal Law Review, (Aug 30, 2018), http://crlreview.in/admissibility-of-social-media-posts-or-messages/