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Impact of Social Media in the law of evidence


Authored by Ekta Sehra


Keywords:

Evidence, Social media, digital evidence.


Abstract:

The 21st century is the era of technology and social media. Undoubtedly, no one can deny its significance, but it has also originated new branches of crime like Cybercrimes. Law also needs to evolve with the progress of society. So, now digital evidence including, social media, is being used in the court of justice. It is playing an essential role in a progressive society with the advent of new technologies and development in science.


Introduction:

Both Law and Society are dynamic in nature, which signifies that it evolves with time. With the advent of new technologies, innovations, tools, and techniques, society also walks on the path of their so-called development. So, it is crystal clear that society adapts to changes that evolve with time. When society accommodates such changes, it gives birth to new species of crime. For example, the advent of the Social media age developed a new species of wrong known as Cybercrimes. Cybercrimes include offenses like online stalking, publishing obscene, privacy infringement, stealing personal information, cyber terrorism, etc. Everything in this world has its pros and cons so as with Social Media.


It will not be wrong to call the 21st century a Social Media age. It has become an obsession or fascination for all ages in society. On the other hand, the law also needs to adapt to social changes and transforms according to it. In such an aspect, the forms of evidence in the court of justice are also evolving. Now, Even the law allows social media as evidence in the court of justice.


· Social Media as evidence:

A crime has four essential elements, including actus reus, mens rea, human, and injury, with certain exceptions. Generally, it is the prosecution who needs evidence to prove that a person has committed a crime or not but with certain exceptions. The prosecution needs shreds of evidence to convince the courts. Some of the present forms of evidence include physical, testimonial, circumstantial, electronic evidence, etc. Electronic evidence is new to this group as it was added recently.

Social media evidence is a form of digital evidence. Generally, people consider social media only with applications like WhatsApp, Facebook, Instagram, Twitter, etc. but it includes much more than these applications solely.


· Merriam-Webster defines Social Media as- forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).[1]

· According to the Collins dictionary, Social Media refers to websites and computer programs that make communication possible with the use of computers or mobile phones.[2]


The Indian Evidence Act, 1872, allows electronic evidence under section 3 of the act. These are known as documentary evidence. However, some of the facts about social media include that it is easily modifiable, undoubtedly duplicable, more substantial, more difficult to destroy, easily available.[3] 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.


For Instance, in 2017, the Trial Court of Haryana sentenced three students of a university for gang raping and blackmailing a junior student of the same university based on the WhatsApp chat.[4] In this case, social media (Whatsapp) chats were used as evidence against the accused.

In 2018, the Bombay High Court said that ''legal notices sent on phone messaging application WhatsApp will be treated as valid evidence in court. A legal notice received by an individual on their WhatsApp account will be treated the same as receiving a physical copy of the notice.''[5]


These are some beads in the thread of cases where social media comes to rescue, or it helped as evidence. Mostly it has been observed that criminals are not punished because of lack of proper pieces of evidence. In that scenario, digital evidence becomes even more significant.


Admissible of digital evidence in Indian Courts:

Indian courts and Indian Laws recognize social media as evidence in the court of justice. Not only India, but various other countries also permit the use of digital evidence in the courts.

· In the Indian Evidence Act, 1872, section 3 of the act approves digital or electronic evidence. The particular part of the section read as- all documents including electronic records produced for the inspection of the court, such documents are called documentary evidence.[6]

· The Indian Evidence Act, 1872, has also been through an amendment under the IT Act, 2000. Notably, section 65A and section 65B were inserted.

Section 65A of the Indian Evidence Act, 1872 reads as- Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of section 65B.[7]


Section 65B of the Indian Evidence Act states about the admissibility of electronic records in the courts. It laid down certain conditions for the admissibility of electronic records in the court, which must be satisfied;

1. At the time of the creation of the electronic record, the computer output containing the relevant information was produced from a computer that was used there used regularly to store and/or process information for the purpose of any activities that are regularly carried on over that period by that person lawfully controlling the use of the computer.

2. The type of information that is contained in the electronic record was regularly fed into the computer in the regular course of activities.

3. The information that is contained by the electronic records is the reproduction of the original electronic record.

4. During the material part of the period, the computer was operating properly or, if not, the computer was out of operation for some period, but was not such to affect the electronic record.[8]


· Section 22 of the Indian Evidence Act, was also inserted that clarifies when oral admissions as to contents of electronic records are relevant, that is, Oral admissions as to the contents of electronic records are not relevant unless the genuineness of the electronic record produced is in question.[9]


· Summing-up:

In this age of digitalization, social media plays a very significant role in law as well, along with other fields. Not only India but other countries also use digital evidence including social media evidence.

The significance of social media as evidence even brightens where there is a lack of other evidence like physical, testimonial, circumstantial, etc. However, there are certain drawbacks to this usage that involves that it is easily modifiable, fake facts, etc.

So, it is concluded that digital evidence is vital when they are authentic, reliable, and valid.


· References

1. https://www.legalpedia.co.in/articlecontent/impact-of-social-media-in-the-law-of-evidence.html#:~:text=Accessing%20the%20information%20in%20a,admissibility%20of%20social%20media%20evidence.&text=The%20screening%20process%20involved%20in,Indian%20Evidence%20Act%5B6%5D.

2. http://lawtimesjournal.in/the-impacts-of-social-media-on-law/

3. https://indiankanoon.org/doc/35556724/

4. https://indiankanoon.org/doc/159075137/


Foot Notes:-

[1] "Social Media | Definition of Social Media by Merriam-Webster." 23 Sep. 2020, https://www.merriam-webster.com/dictionary/social%20media. Accessed 4 Oct. 2020. [2] "Social media definition and meaning | Collins English Dictionary." https://www.collinsdictionary.com/dictionary/english/social-media. Accessed 4 Oct. 2020. [3] "The impacts of Social Media on law - Law Times Journal." 14 Jun. 2020, http://lawtimesjournal.in/the-impacts-of-social-media-on-law/. Accessed 4 Oct. 2020. [4] "WhatsApp chats land three law students of Sonepat univ in ...." 6 Jun. 2017, https://www.hindustantimes.com/india-news/whatsapp-chats-land-three-law-students-of-sonepat-varsity-in-prison-for-rape/story-ZyQBR1vqqjoBoReQT2coMJ.html. Accessed 4 Oct. 2020. [5] "WhatsApp Blue Tick Is Valid Evidence, Says Bombay High ...." 16 Jun. 2018, https://www.ndtv.com/india-news/whatsapp-blue-tick-is-valid-evidence-says-bombay-high-court-accepts-delivery-of-legal-notice-by-sbi-1868511. Accessed 4 Oct. 2020. [6] "Section 3 in The Indian Evidence Act, 1872 - Indian Kanoon." https://indiankanoon.org/doc/1031309/. Accessed 4 Oct. 2020. [7] "Section 65A in The Indian Evidence Act, 1872 - Indian Kanoon." https://indiankanoon.org/doc/159075137/. Accessed 4 Oct. 2020. [8] "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. Accessed 4 Oct. 2020. [9] "Section 22 in The Indian Evidence Act, 1872 - Indian Kanoon." https://indiankanoon.org/doc/1021266/. Accessed 4 Oct. 2020.