Requirements That Electronic Evidence Must Fulfill to Be Admitted in Court

The legality of evidence is a fundamental requirement and another is the respect for fundamental rights, among which you can frequently find references with respect to protecting personal data and workers' rights. The reliability of evidence, together with its pertinence, and that it be the best available at a certain moment in time are other fundamental requirements that the judge will consider when deciding on the admissibility of particular evidence.

Other requirements from legislation determining the admissibility or not of electronic evidence are the use, proportionality, and effectiveness of such evidence. Effectiveness is understood as the capacity to prove the allegation. Other laws establish that the evidence be original whenever possible and not a copy. The evidence must also be direct and not hearsay or indirect.

Although the aforementioned requirements appear in legal texts, in judicial practice they are not always applied everywhere. The respect for fundamental rights, especially those pertaining to the right of data protection and the rights of workers, is breached most frequently when presenting electronic evidence in court. This means that evidence is often rejected. The formal technical requirements that are most often breached are those pertaining to the compliance with measures necessary for checking the authenticity and inalterability of the electronic document, the electronic mail sent, as well as the lack of an electronic signature on documents that end up without evidential strength at the time they are presented at court. Furthermore, on many occasions, the chain of custody is violated, generating legal insecurity in the electronic evidence presented.

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