By Bryce Matthewson
The effect of the internet on our daily lives is undeniable. Recently we have even seen a court accepting service via Facebook. These changes raise new challenges for the legal system, one of which comes in the form of the Wayback Machine.
What is the Wayback Machine?
The Wayback Machine is a technology that preserves a comprehensive record of all websites, documents and other information contained on the internet. Because of the inherent fluidity of internet-based content, information that is available one minute can be gone the next. This can pose a serious problem for litigants.
In short, the Wayback Machine is a system that allows the public to view a website as it appeared on a previous date. It operates by scouring the internet in a methodical manner, making copies of all publicly accessible websites. These copies are then arranged by date, archived, and made accessible to the public.
Using the Wayback Machine is simple. After accessing the website (www.archive.org) you enter the URL of the website you are looking for, and out pops a list of dates on which the website was copied. You can then view the site as it appeared on those dates. No registration is required, and it is completely free.
Why is the Wayback Machine important to lawyers?
At first glance the Wayback Machine will probably seem like a nifty gadget, however, the Wayback Machine may have potential in a lawyer’s practice. Foreign law reports are dotted with examples of intellectual property lawyers having tried to use Wayback Machine printouts to show the use of a trade mark or prior disclosure of a patented invention. Similarly, it could be essential in proving copyright infringement, defamation, privacy infringement, unlawful competition, comparative advertising, etcetera.
But not all that glistens is gold and before one launches a case based on a Wayback Machine printout one must consider the weight of that evidence.
The Wayback Machine as evidence
Objection M’Lord! That’s hearsay! The obvious objection is that evidence obtained using the Wayback Machine is hearsay and accordingly inadmissible, unless the contrary is proven.
Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 (the EAA) defines ‘hearsay evidence’ as ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’.
At first sight, Wayback Machine printouts fall squarely within that definition. Internet Archive (the company that operates the Wayback Machine) recognises this and offers a standard affidavit that provides that the printouts ‘are true and accurate copies of printouts of Internet Archive’s records’. But we all know that that is not the same as saying they are accurate.
One might be inclined to subpoena an expert from Internet Archive to present the evidence, but this carries with it the inherent risks of using subpoenaed witnesses. Internet Archive expressly asks on its website that users do not resort to this course because of the strain it will place on its resources.
Despite not having gained traction in South Africa, the Wayback Machine has been used extensively in other jurisdictions where the courts have had to grapple with these issues.
In the first such case, EchoStar sought to introduce printouts of Telewizja Polska’s website obtained using the Wayback Machine (Telewizja Polska USA Inc v Echostar Satellite No. 02 C 3293, 65 Fed. R. Evid. Serv. 673 (N.D. Ill. 14-10-2004)). EchoStar relied on an affidavit by Molly Davis, the administrative director of the Internet Archive. In the affidavit Davis attested that the printouts were ‘true and accurate copies of printouts of Internet Archive’s records’. Polska launched an in limine motion to supress the evidence on the basis that it was hearsay and was not authenticated.
Although Polska failed in the preliminary stage, the trial judge found that the affidavit from Internet Archive contained both hearsay and inconclusive supporting statements, and the printouts were not self-authenticating. (Almost all articles cite only the decision of the magistrate and ignore the overruling decision of the district court. The district court decision, which was given during the trial is confirmed in CA Levitt & ME Rosch, Find Info Like a Pro: Mining the Internet’s Publicly Available Resources for Investigative Research, (American Bar Association 2007) vol 1 at 195). Accordingly, the website printouts were inadmissible.
Since that decision there have been a number of further decisions, but not with any level of consistency.
In the later decision of St. Luke’s Cataract & Laser Institute P.A. v Sanderson, M.D., LLC. (No. 06-CV-223, 2006 WL 1320242 (M.D. Fla. 12-5-2006)) the court was faced with a similar issue. The plaintiff in the St Luke’s case did not produce an affidavit from Internet Archive, but simply relied on Davis’ affidavit from the Telewizja case. The judge ruled that the evidence was not admissible but noted that, if the plaintiff had produced an affidavit by ‘a representative of Internet Archive with personal knowledge of its contents, verifying that the printouts … are true and accurate copies of Internet Archive’s records’, the evidence may have been admissible.
However, two district courts in the Second Circuit have taken a different view by focusing on the authenticity of the original rather than the copy. In the matter of Novak v Tucows Inc (no 06-CV-1909, 2007 U.S. Dist. LEXIS 21269 (E.D.N.Y. Mar. 26, 2007)), Novak sought to admit several Wayback Machine printouts. In doing so he relied on his own affidavit in which he attested to having obtained them using the Wayback Machine. The court ruled that the pages were hearsay, and that Novak could not authenticate them because he lacked the personal knowledge to prove that the printouts were a true reflection of the original website (ie, not just that they were a true reflection of Wayback Machine’s records).
The approach in the Novak case was thereafter followed by another United States (US) district court in the matter of Chamilia, LLC v Pandora Jewelry, LLC. (85 U.S.P.Q.2d 1169 (S.D.N.Y. 2007)) and has been subsequently affirmed by the Court of Appeals for the Second Circuit (Novak v Tucows Inc no 07-2211-cv, 2009 U.S. App. LEXIS 9786, at *6 (2d Cir. 6-5- 2009)).
Judicial attention has not been limited to the US. The Canadian courts have found in criminal matters (R v Ballendine 2009 BCSC 1938), civil matters (ITV Technologies Inc v WIC Television Ltd 2003 FC 1056 (CanLII)), trade mark proceedings (eMusic.com Inc (Re) 2011 TMOB 34 (CanLII) and St. Joseph Media Inc v Starwood Hotels & Resorts Worldwide Inc 2010 TMOB 188 (CanLII)) and patent proceedings (Re U-Haul International Inc (2010) 82 C.P.R. (4th) 279) that Wayback Machine printouts can be admissible.
By contrast, the Australian courts in E & J Gallo Winery v. Lion Nathan Australia (Pty) Ltd [2008] FCA 934 found that Wayback Machine printouts were inherently unreliable and accordingly not admissible (although this decision was subsequently overturned on appeal, the appeal was decided on a different issue).
I find the reasoning of the court in the Novak case to be the most convincing. Although the court in the St. Luke’s case suggested that the evidence may be admissible if introduced with an affidavit from an employee of Internet Archive, in my view the evidence would still be hearsay. As suggested in the Novak case the true deponent to the affidavit should be the webmaster (or other such similar person) of the original website. The question that should rather be asked is whether the printouts should nevertheless be admissible.
In terms of the EAA, hearsay evidence can be admitted by agreement between the parties, or if the court is of the view that such evidence should be admitted in the interests of justice, having regard to the following –
In the absence of a factual matrix it is impossible to consider all of these factors. However, if one considers those factors that can be considered in a factual vacuum, one begins to paint a picture favouring the admission of Wayback Machine printouts.
First, having regard to the nature of the evidence, which is an issue primarily concerned with the reliability of the evidence, one must favour the admission of the evidence as a computer printout, ascertained in the manner in which the Wayback Machine works, is inherently reliable.
If one then considers why the evidence is not being given by the primary source, a strong argument can be made in favour of admitting the evidence. The primary source would ordinarily be the webmaster, who in most cases will be the webmaster for many websites, and who will in all likelihood not recall what was posted on a website, what could be, years ago. Furthermore, this individual may be contracted to one of the parties and accordingly will have an interest in the matter. For those reasons alone this individual’s evidence would have to be considered with caution and accordingly Wayback Machine printouts should be favoured.
The last factor is the catch all and in this regard issues regarding the underlying purpose of the rules relating to hearsay should be taken into account. First, it is trite that the hearsay rule is justified by the best evidence rule. In these circumstances, because of the above-mentioned concerns regarding the value of the webmaster’s evidence, the best evidence is the Wayback Machine printouts (see also DR Eltgroth ‘Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence’ Fordham Law Review (2009) 78 at 181 for a full discussion on this issue). Secondly, the hearsay rule is aimed at ensuring that jurors will not be influenced by hearsay evidence. This does not apply in the South African context where judges are able to consider the appropriate probative weight with which to consider hearsay statements.
A further consideration is the Electronic Communications and Transactions Act 25 of 2002 (ECTA). Section 15 of ECTA provides that the rules of evidence must not be used to deny the admissibility of a data message on the grounds that it is not in its original form if it is the best evidence that the person adducing it could reasonably be expected to obtain. Section 21 of the ECTA defines a data message as data generated, sent, received or stored by electronic means and includes a stored record, which clearly includes a Wayback Machine printout.
As discussed above, the inherent difficulties in obtaining the primary evidence would in ordinary circumstances render Wayback Machine printouts the best evidence, and accordingly, in terms of s 15, it should not be refused. This proposition is consistent with the proposed reading of the EAA suggest above.
Section 15 of ECTA goes on to provide that a data message should be given due evidential weight, having regard to –
The first three factors are dealt with briefly in the standard affidavit that Internet Archive will provide on request. Should these issues be challenged, it may be necessary to introduce expert evidence. However, having regard to the approach of foreign courts, it seems that the manner of collection, storage and reliability of the message is generally considered reliable, and accordingly the printout should be considered with a high degree of evidentiary weight.
As regards the catch-all provision, it is difficult to envisage what else could be considered relevant. It is possible that issues similar to those considered in the hearsay provision discussed above could also be considered, such as the potential prejudice, and the purpose of the evidence. In my opinion, the court, in properly exercising its discretion in terms of s 15 of ECTA, should, unless satisfactory evidence is produced to dispute the reliability of the printouts, admit the printouts and consider them with a high degree of evidentiary weight.
Conclusion
The impact of the internet on legal practice is becoming increasingly apparent. Attorneys must consider whether any useful evidence (for their client or their opponent) could be obtained using the Wayback Machine. One should also be acutely aware that the admission of the printouts may be challenged and should prepare accordingly.
That being said, I submit that unless the objector can produce convincing evidence disputing the reliability of Wayback Machine printouts, the courts should admit them, and consider them of a high probative value.
Bryce Matthewson BSc LLM (Wits) is a candidate attorney at Spoor & Fisher in Pretoria.
This article was first published in De Rebus in 2014 (Jan/Feb) DR 32.