Evidence from the Wayback Machine

The utility of evidence relating to the existence of websites on the internet and their contents sourced from the Wayback Machine is increasingly being considered by Australian Courts.   The question is whether or not the Courts will accept reports from the Wayback Machine in practice and if so what will they allow?

So just what is the Wayback Machine?

Founded by the Internet Archive, a non-profit organisation based in San Francisco, the Wayback Machine is a service that allows users to access archived versions of websites on the World Wide Web.  Since its launch in the late 90s, it has catalogued over 400 billion pages for users to view what websites looked like in the past.[1]  Users of the Wayback Machine can simply start from typing in a URL and selecting a date range to commence surfing on an archived version of the website.

Functionality of the Wayback Machine

The use of Wayback Machine can be useful in litigious matters where historical evidence of what was on a particular website is required including:

  • a website’s content history and the number of pages at a particular point in time;
  • the date that a website was first seen on the internet; and
  • whether the website was continuously in use since it was first put live.

However, the admissibility of reports provided by the Way Back Machine was discussed in obiter in the case of King Par, LLC v Brosnan Golf Pty Ltd [2014] FCA 795 (King Par).

The legal issues considered in King Par

This case deals with an application under section 31 of the Trade Marks Act 1995 (Cth) regarding whether registration of a trade mark could be opposed on the ground that the applicant for registration was not its owner.  In essence this case was about entitlement to registration of a trade mark.

Greenwood J ruled that the “the respondent” was not the owner of the trade mark and its trade mark should be cancelled, under s 31A of the Federal Court of Australia Act 1976 (Cth).  In making this decision, the Court has implicitly accepted that Brosnan obtained “some” reasonable prospects of proving a claim of trade mark abandonment against King Par.

In an attempt to prove that the Orlimar website was in use a Ms Stoner provided affidavit evidence on searches that she had completed and the methodology utilised in locating records contained on the Wayback Machine.  She said that she sought to identify webpages from King Par’s website kingpar.com that contained a link to the website orlimar.com as the Wayback Machine said it was 2 September 2010[2].  She then annexed a printout of this page and went on to describe what she did to locate other pages on the Orlimar website that the Wayback Machine had archivedShe then attempted to provide a description of how the Wayback Machine worked.

In reaching his conclusion Applegarth J said in relation to the affidavit evidence that the affidavit material showed a long history of use of the Orlimar mark continuously from 1998.  In regard to the material from the Wayback Machine contained in the Stoner Affidavit it was said by Applegarth J at 168 that:

“Apart from these matters, Ms Stonier has conducted a number of searches using the waybackmachine archive site. I do not rely upon any of the images Ms Stonier refers to as I cannot be satisfied as to the accuracy of the dates of archive of those images on any of the websites to which they are attributed by the W M search engine”.

In King Par nothing turned on the evidence from the Wayback Machine, however it seems that the Courts have moved on (at least in part) from the position of Applegarth J in King Par.

Could reports from the Wayback Machine be admissible as an exceptions to the hearsay rule?

The case of Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552 (Dyno Nobel) was an interlocutory decision of Burley J that considered various grounds for the admissibility of evidence from the Wayback Machine.

The first ground that was considered was whether reports gathered from the Wayback Machine were ‘business records’ pursuant to section 69 of the Evidence Act 1995 (Cth) (Evidence Act).   The substantive proceedings were commenced by Orica Explosives Technology Pty Ltd (Orica) seeking revocation of Dyno Nobel Asia Pacific Pty Ltd’s (Dyno Nobel) Australian Patent No 204293486 (Patent).   Dyno Nobel subsequently cross claimed for infringement of its Patent.

Dyno Nobel sought to rely on evidence on an archived website operated by Orica at www.i-konsystem.com, which was obtained from the Wayback Machine in an affidavit of Mr Christopher Butler affirmed on 2 July 2019.  Orica objected to the admissibility of the patent’s priority date contained in affidavit material from the Wayback Machine because they allege that it was comprised of hearsay documents under the Evidence Act and did not qualify for any exception to this rule.

Orica submitted that the evidence contained in the Butler Affidavit were not admissible as ‘business records within the meaning of section 69 of the Evidence Act because they were not documents of either of the parties to the proceedings.

Burley J at paragraph 9 ruled that the materials from the Wayback Machine were hearsay.  This was because each page was a digital copy said to be present on the i-kon website.[3]  Burley J went on to say in relation to the Wayback Machine:

“The representation made to those using the Wayback Machine is that the Internet Archive copied the webpage into its archive and recorded the date on which it did so, and that the webpage which appears in its archive is the webpage that existed on that date. Dyno wishes to adduce the Wayback materials as evidence that those pages were in fact in that form on those dates. It submits that the use of the evidence is to prove the availability of the website (and the contents of the particular pages) on a particular date. It does not seek to use the documents to prove the truth of any fact referred to in them. The dates applied by the Internet Archive are not hearsay, as they were created by the organisation itself.”

Since the patent’s priority date was contained in hearsay evidence, Dyno Nobel submitted that it should not be admitted into evidence under the ‘business record’ exception set out in s 69 of the Evidence Act.  This exception provides that the hearsay rule does not apply to a previous representation recorded in a document that forms part of the records retained by an organisation for the purposes of a business.

Burley J differentiated between documents (for example books and newspapers) produced to be sold as part of a business with those retained for the purposes of the business and which generally record the internal activities of the business themselves such as financial records and internal marketing plans.  Therefore it was held that the patent’s priority date is constituted of the business’s output itself, specifically the process of storing and collecting records from the internet and making them accessible publicly.  Therefore this would not fall into the concept of an internal “business record[4].

The section 190 exception to the hearsay rule

Under exceptional circumstances, the Court may waive the hearsay rule in accordance with section 190 of the Evidence Act, where the evidence related is not in dispute or its application would result in unnecessary expense or delay.  The Court may also consider the significance of the evidence of the proceeding and its probative value.

In Dyno Nobel Burley J said at paragraph 21 that:

“The evidence of Mr Butler (who it should be noted was an office manager at the Internet Archive), the operator of the Wayback Machine) explains the mechanical process by which the Wayback materials are collected. It operates to capture and date the ephemera of the internet. I accept that the Wayback materials are likely to be a reliable indication of the content of the i-kon website at different points of time.

Having regard to the process by which the Wayback materials are collected and retrieved, and in the absence of material pointing to inaccuracy or other reasons why they should not be accepted, it seems to me that the objection advanced by Orica is purely technical in nature, and is not based on an absence of probative value or relevance of the materials concerned. Such an approach is not to be encouraged. After all, the i-kon website was one operated on behalf of Orica itself. If there were a basis upon which it may be said that the Wayback materials were inaccurate, one would expect it to have been put forward.”

Notably Burley J said at 22 that:

“Furthermore, there appears to be other evidence in the proceedings that tends to support the accuracy of the Wayback materials”.

In the end Burley J ordered that section 59 of the Evidence Act be waived to allow the evidence from the Wayback Machine to be admitted because of the discretionary exception to the hearsay evidence rule contained in section 190(3).  In deciding this, the Wayback Materials were admitted subject to the limitation contained in section 136 of the Evidence Act as follows:

“that the use of the evidence is to prove the availability of the i-kon website (and of the contents of the particular pages) on particular dates. It does not extend to prove the truth of any fact referred to in the particular pages”.

The qualification is important as Burley J allowed the materials from the Wayback Machine to be admitted as evidence to prove the existence of certain pages on certain dates.  Evidence of the truth or otherwise of the content of pages adduced from the Wayback Machine was not admissible.

The decision of Burley J was followed by Murphy J in Pinnacle Runway Pty Ltd v Triangl Limited [2019] FCA 1662 (Pinnacle).  Murphy J said at 120:

“(a) like Burley J, I consider that the screenshots are likely to be a reliable indication of the content of the relevant websites at different points in time. Even if there were some small errors in the reproduction of a webpage or in the date recorded, such variance would be of little moment having regard to the circumstances of the present case and the limited purpose for which the evidence is adduced”

Takeaways

Evidence obtained from the Wayback Machine has been held to be hearsay.  The business records exception to the hearsay rule does not apply.  That said reports from the Wayback Machine may be admissible if there is other evidence that “tends to support the accuracy” of it.   In this respect it may be capable of being admitted pursuant to the discretion provided in section 190(3) of the Evidence Act provided that its use is limited pursuant to section 136.  Litigants seeking to rely on reports from the Wayback Machine should ensure that this material is not relied on in isolation and that they are not seeking to rely on the content on the pages provided without further information.

Further references

Cases involving the Wayback Machine

Apple Inc. [2019] APO 44

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

King Par, LLC v Brosnan Golf Pty Ltd [2014] FCA 795

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

Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474

JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236

Unilever PLC v Damien Amos [2020] ATMO 39

Legislation

Federal Court of Australia Act 1976 (Cth)

Evidence Act 1995 (Cth)

Related articles by Dundas Lawyers

The importance of evidence and its ubiquity

Further information

If you need advice on adducing evidence that may be contained on the Wayback Machine in a litigious matter, please call me for an confidential and obligation free discussion.

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | Mobile: 0419 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] The Way Back Machine is available at https://archive.org/web/.

[2] King Par, LLC v Brosnan Golf Pty Ltd [2014] FCA 795 at [121].

[3] Burley J at 9 in Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552

[4] Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 at [23].

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