A Whole New World

As humans we have an interesting relationship with new and unknown things; they may intrigue us, frighten us or excite us (often all at once). As the inevitable forward march of progress trudges on we either adapt or are left behind, or so some often say. It would be foolish to ignore change, but to assume that all change is good can also, perhaps, be too optimistic.

ediscovery (electronic discovery, also abbreviated as e-discovery), while lacking a strict legal definition is understood as the handling of electronic data and metadata (information about the information). Technology has wormed its way into so many aspects of our business, social and culture that its inclusion into the field of law was never going to be a surprise. While refraining from playing into stereotypes, when it comes to lawyers and particularly judges, Brendan Hughes (The Rise of Electronic Discovery) phrases it well by saying “as a species, (they) generally adopt an ostrich approach to new technology”.

Ediscovery brings with it many improvements in quality of life for legal practitioners; no more excessive and unnecessary printing as courts and firms are more accommodating of digital copies. Searching through files and referencing has never been easier, with a simple word search on a document one can find exactly what they’re looking for instantly in an 800 page document. With the repeal of the Computer Evidence Act (57 of 1983) by the ECTA (Electronic Communications and Transactions Act 25 of 2002) most forms of electronic communication can be admissible evidence in court.

In addition, digital information often contains helpful metadata as pointed out by Terry Harrison, an independent international ediscovery consultant, in Bringing Advancing Technology in Litigation – Time to Explore Electronic Discovery he points out that sometimes the ‘original form’ of a document should be its electronic version as it contains helpful metadata. For instance an image’s metadata can reveal how old the image is, where it came from and what created it, all integral information in an investigation.

At first there seems to be little problem, while yes, certain pieces of legislation are not up to date in their wording-take the NPA (National Prosecuting Authority Act 32 of 1998) for example, under Section 29 it states that a warrant allows for the search and seizure of items that have, or may have a bearing on the investigation for which the warrant was issued in relation to. It does not explicitly state electronic communication as falling within the scope of such a search, Section 82 of the ECTA and the courts however, make stipulations to express that it should.

This seems simple enough, the Legislator has done their due diligence and ensured the applicable and relevant legislation adjoining these changes has been accounted for. However in the short space of time within which the ECTA has been promulgated the realm of ediscovery has evolved. Data messages and conversations can now be edited and falsified with third party software, and certain platforms allow the user to edit ‘their’ conversations as well. While tampering in this way can easily be picked up on, and your ‘deleted’ whatsapp messages can still be retrieved, the method of doing so is not so simple.

There are many apps that log messages before their deleted, but in case you haven’t preemptively installed one these, rest assured (or perhaps feel uneasy) that whatsapp backs up your ‘deleted’ messages to its cloud. These backups can be retrieved by whatsapp should the authorities need them in an investigation-however, companies like Google and Whatsapp are only obliged to hand over these copies should the authorities have a warrant. But what about the cases where the information that is needed in order to obtain a warrant is in electronic form?

Say a client approaches you saying that they have found disturbing messages on their child’s phone indicating that a predator is attempting to prey on their child, but soon afterwards the messages were deleted. You know that these messages are admissible in court [Fisher v S (A51/2016) [2018] ZAWCHC 15; 2018 (1) SACR 377 (WCC) (9 February 2018)], if they can be retrieved, and you’re sure that a warrant could be obtained should you present the explicit messages to the police. However you can only compel Whatsapp to provide you with the messages if you have a warrant, and you can only obtain a warrant if you can show evidence as to why the suspects right to privacy should be infringed. Whatsapp as a company is unlikely to jeopardize their image in combing through deleted user data at the request of anyone who asks them.

What do you advise your client to do? What stance should the law take? Is an accusation and a deleted notification enough to expose the privacy of another?