Admissibility of evidence from the Wayback Machine

In a previous article we discussed whether results from the Wayback Machine could be admissible as evidence and the issues surrounding this in relation to the hearsay rule. A recent decision of the Federal Circuit Court has gone on to consider the authenticity of the screenshots obtained from the Wayback Machine and the relevance of those screenshots.

Background to the admissibility of evidence from the Wayback Machine

The previous article discussed how the Court may waive the hearsay rule if the evidence from the Wayback Machine is not in dispute or its application would result in unnecessary expense or delay.

Both Burley J and Murphy J accepted that evidence from the Wayback Machine shows a reliable indication of the content of the relevant website at certain points in time.^[1] Importantly, in the recent Federal Court case of Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552:

there was other evidence supporting the accuracy of the Wayback Machine documents; and
the purpose of the evidence was to prove the availability of the website, not to prove the truth of any fact referred to on the webpages.^[2]

In Home Grown Brands Australia Pty Ltd v Sperling Enterprises Pty Ltd [2021] FCCA 1597, the Applicant claimed that the Respondent had engaged in misleading or deceptive conduct by selling nipper boards that had distinctive features of the Applicant’s own nipper boards.^[3]

An affidavit of the Respondent’s solicitor contained evidence obtained from the Wayback Machine.^[4] Manousaridis J then considered whether Wayback Machine documents were admissible based on two (2) factors:

the authenticity of the documents; and
their relevance to the proceeding.

Authenticity of the documents

Manousaridis J described “authenticity” as a document or other thing that is what the party claims it to be and “authentication” to be the way in which the party persuades the court that it is what the party claims it to be.^[5]

In this case, the evidence was contained in the affidavit of the Respondent’s solicitor. The Respondent claimed that the documents were screenshots of certain websites as they existed on the dates stated on each screenshot. The webpages depicted surfboards and related information. The Respondent was relying on the screenshots to show:

the words “Internet Archive WaybackMachine”;
the URL of the website that had been archived;
a number followed by the word “captures”;
a range of dates appearing under the word “captures”; and
a row next to those dates divided into columns at different points at which vertical lines appear to signify a date or dates.^[6]

The below screenshot is an example of what the Respondent was referring to in the points above.

The question posed to the parties by Manousaridis J was:

“Is the manner in which web pages archived by and made available on the website at www.web.archive.org (known as the “Wayback Machine”) knowledge that is not reasonably open to question, and is common knowledge generally, for the purposes of s 144(1) of the Evidence Act 1995 (Cth)?”^[7]

The Applicant submitted that the manner in which websites are archived and made available on the Wayback Machine is not knowledge that is not reasonably open to question and, to the extent it may be, it is it not common knowledge. The Respondent submitted that it is knowledge that is not reasonably open to question.^[8]

Manousaridis J sided with the Respondent saying that the Wayback Machine documents contained:

screenshots of websites accessed through the internet; and
additional information specific to the Wayback Machine, and

the presence of that additional information is the basis for finding that the documents depict the websites as they appeared on the particular date noted by the Wayback Machine.

Manousaridis J agreed with Murphy J’s view in Pinnacle Runway Pty Ltd v Triangle Limited [2019] FCA 1662 and determined that the Respondent could rely on the additional information in the documents as evidence that the documents are authentic and what the Respondent claimed them to be.

Relevance of documents

In addition to determining their authenticity, Manousaridis J had to determine whether the contents of the Wayback Machine documents were relevant to the proceeding.

At [54] Manousaridis reiterated Wilcox J’s point in Re Mark Lyons Pty Limited v Bursill Sportsgear Pty Limited [1987] FCA 282 and noted that the relevance of the documents:

“is evidence of the “behaviour of the people in the particular trade”, which is “the best evidence of the dimensions of the relevant market””.

In this case, it allowed a person to draw an inference on the class or classes of persons the Respondent had in mind when posting the particular goods on the website and, in turn, assist in assessing the class or classes of persons to which the Respondent had engaged in misleading or deceptive conduct.^[9]

As such, Manousaridis J determined that the Wayback Machine documents were relevant to the matter. Interestingly, though, the documents were not relied upon in making any finding in the proceedings.^[10]

Links and further references

Cases

Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552

Home Grown Brands Australia Pty Ltd v Sperling Enterprises Pty Ltd [2021] FCCA 1597

Pinnacle Runway Pty Ltd v Triangle Limited [2019] FCA 1662

Re Mark Lyons Pty Limited v Bursill Sportsgear Pty Limited [1987] FCA 282

Further information about admissibility of evidence from the Wayback Machine

If you need advice on admissibility of evidence from the Wayback Machine in litigation, contact us for a confidential and obligation-free discussion:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au

Disclaimer

This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552.

[2] Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552 [22] and [24].

[3] Home Grown Brands Australia Pty Ltd v Sperling Enterprises Pty Ltd [2021] FCCA 1597 [2].

[9] Re Mark Lyons Pty Limited v Bursill Sportsgear Pty Limited [1987] FCA 282 at [53].

[10] Ibid [56].