Can email trackers be submitted as evidence?

Whether email trackers, read receipts and similar indicators that show an email has been received and, ostensibly, read can be submitted as evidence has not been substantially considered in standing jurisprudence.  This article briefly considers whether, in light of existing case law, email trackers can be submitted as evidence; a contentious issue within internet and technology law.

Fundamentals of evidence

All evidence which is sufficiently relevant to the issues before the Court tends to be admissible whereas all evidence that is irrelevant, or insufficiently relevant, should be excluded.^[1]  His Honour Gleeson CJ said in the case of Festa v R (2001) 208 CLR 593 at [14]:

“…[i]f evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration.”

The Court has seen fit, when determining what might be seen to be ‘relevant’, to adopt the following definition:

“[a]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other.”^[2]

The statutory position mirrors this judgment.  Section 55 of the Evidence Act 1995 (Cth) (Act) provides:

“(1) [t]he evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

Email trackers and read receipts

Section 161 of the Act provides:

“Electronic communications

(1) If a document purports to contain a record of an electronic communication… it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:

(a) Was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made;

(b) Was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and

(c) Was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and

(d) Was received at the destination to which it appears from the document to have been sent; and

(e) If it appears from the document that the sending of the communication concluded at a particular time – was received at that destination at that time.”

The Act is silent as to whether email trackers and read receipts may allow a presumption that the recipient of an email has read and understood the communication.  Perhaps this reflects the ‘newness’ of email trackers and read receipts or, alternatively, a recognition by the legislators that the mere opening of an email and communication of an email tracker or read receipt does not, in all circumstances, suggest such has been read and understood.

The New South Wales Court of Appeal in the case of Jaffari v Grabowski [2013] NSWCA 114 considered affidavit evidence of read receipts, holding at paragraph [18]:

“[i]n her affidavit in response to Mr Nichols’ affidavit, Mrs Jaffari denied that the applicants received the respondent’s costs notice of motion and affidavit, or Mr Nichols’ letter advising of the outcome of the proceedings before the primary judge on 5 August 2011. It suggested that ‘read receipts’ were not an infallible record of the fact that the relevant email had been seen or read by the recipient or received. It asserted that Mr Nichols had the applicants’ postal address but did not forward any of his correspondence to them by that means and finally asserted that had the applicants received his email(s), they would have acknowledged and replied to same.”^[3]

The Court considered various other matters, before returning to make a judgment in respect of whether the emails in this case had been received, holding at [97]:

“As will be recalled, Mr Nichols’ affidavit carefully explained the steps he had taken to communicate to the email addresses he had received from the applicants’ former legal representatives that at the hearing before the primary judge on 5 August 2011 the adjournment application had been refused and, absent their communicating a contrary view to the Court, the costs orders set out in the Notes document would be made on 18 August 2011. The applicants do not dispute those are their email addresses. There are many emails in the documents they rely upon emanating from those addresses or documents identifying one or other email address as their contact email. Mr Nichols received confirmation that his email had been relayed to the applicants’ email addresses. Mrs Jaffari suggested not all such delivery messages can be relied upon, but there is no reason in my view to doubt that advice of the status of the case was communicated to the applicants’ email addresses. Whether or not they read it was a matter for them.”^[4]

[Bold is our emphasis]

Takeaways

There is no distinct authority from the Legislature or Courts that provides email trackers or read receipts can be submitted as evidence.  However, when considering the fundamentals of evidence, it may be that an email tracker or read receipt can make it more probable that the email was at least relayed to the recipient.  This can be sufficient, as was the case in Jaffari v Grabowski.  Per this case, the Court provided that when the sender receives a confirmation that their email has been relayed, whether by email tracker or read receipt, the matter of it having actually been read is a matter for the recipient.

Links and further references

Legislation

Evidence Act 1995 (Cth)

Cases

Festa v R (2001) 208 CLR 593

Goldsmith v Sandilands [2002] HCA 31

Hollington v F Hewthorn and Co ltd [1943] KB

Jaffari v Grabowski [2013] NSWCA 114

Further information about admissibility of electronic evidence

If you need advice on the admissibility of electronic evidence in a litigious matter, contact us for a confidential and obligation-free discussion:

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] Hollington v F Hewthorn and Co ltd [1943] KB 587, 594; Evidence Act 1995 (Cth) s 56(1) and (2).

[2] Digest of the Law of Evidence, 12^th ed 1936, Art 1 as cited in Palmer v R (1998) 193 CLR 1 [55]; Goldsmith v Sandilands [2002] HCA 31 [31].

[3] Jaffari v Grabowski [2013] NSWCA 114.

[4] Jaffari v Grabowski [2013] NSWCA 114.

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