As a general rule, a party to a proceeding in the Federal Court cannot prove the existence of a fact by producing evidence of a statement which they made out of the Court. This is known as the hearsay rule and is found at section 59 of the Evidence Act 1995 (Cth) (Act). One (1) of the exceptions to the hearsay rule is in relation to electronic communications. This allows a person to rely on the communication to prove it was sent to or from one (1) person at a particular time. To prove a fact of the statement itself is a bit more complicated.
Meaning of ‘electronic communication’
‘Electronic communication’ is defined at section 5 of the Electronic Transactions Act 1999 (Cth) as:
- ‘a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
- a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.’
Types of communications which may be included under this definition are e-mails, text messages and instant messages sent via platforms such as Facebook Messenger, WhatsApp or WeChat.
Although instant messages may be considered an electronic communication, it is not practical for a person’s mobile phone, tablet or computer to be put into evidence. Because of this, the next best option would be to present the logs, or transcripts, from the messages in question.
The use of chat logs as evidence has not been considered in the Federal Court, however in Brar v Minister for Immigration & Anor [2018] FCCA 2272 (Brar) the First Respondent sought to rely on a screenshot to prove that an e-mail was sent to the applicant.[1] Manousaridis J focused on the bolded words of section 71 of the Act set out below:
‘The hearsay rule does not apply to a representation contained in a document recording an electronic communication…’.
Manousaridis J held that the screenshot was a document recording an electronic communication and the hearsay rule does not apply screenshots of electronic messages, as excepted by section 71 of the Act.[2] Similarly, the case of Prior v Wood [2017] FCA 193 (Prior) supports the position that a screenshot of a Facebook post’s ‘message thread’ is a document recording an electronic communication.[3]
As a screenshot was held to be a document and electronic communication, it is likely that a log taken directly from the messaging platform would also be considered to be both.
Application of the hearsay rule
Section 71 of the Act states:
‘The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to:
(a) the identity of the person from whom or on whose behalf the communication was sent; or
(b) the date on which or the time at which the communication was sent; or
(c) the destination of the communication or the identity of the person to whom the communication was addressed.’
This exception has been addressed by the Court on more than on more than one (1) occasion and the extent to which this rule applies is strictly in relation to:
- the identity of the person who sent the communication (or on whose behalf the communication was sent);
- the identity of the person the communication was sent or addressed to;
- the date and time at which the communication was sent; and
- whether any attachments were included.[4]
Dowsett J also noted in Prior that section 71 of the Act:
‘does not make a representation admissible if it is contained in an electronic communication.’[5]
Therefore, if a party wants to rely on a statement made by another in an electronic communication, it needs to be proven that that person was the author of the statement. For example, in Prior the Applicant wanted to rely on statements made by the Third Respondent in a Facebook Post which the Third Respondent denied authorship of. Dowsett J held that the onus was then on the Applicant to prove that the statement was made by the Third Respondent.[6] Counsel for the Third Respondent argued that, until authorship is proven, the document cannot be tendered against the Third Respondent. This was accepted by Jarrett J, the primary judge in the proceedings, and was not discussed any further by Dowsett J.[7]
Summary
A log from an instant messaging platform can be used as an exception to the hearsay rule to show that a particular person sent or received a message and the date and time at which it was sent. If a party wants to rely on the statement itself, they will need to first prove that the person is actually the author.
Links and further references
Related articles
Can email trackers be submitted as evidence?
Evidence from the Wayback Machine
Software litigation – how much evidence is enough? – Video
Evidence in the digital era civil and IP litigation
Legislation
Electronic Transactions Act 1999 (Cth)
Cases
Brar v Minister for Immigration & Anor [2018] FCCA 2272
Further information
If you need advice on statements made via instant messaging platforms, contact us for a confidential and obligation free discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 (Preferred)
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] Brar, [8].
[2] Prior [9].
[3] Ibid [83].
[4] Brar [9]; Tsimperlenios [59]; Prior [78].
[5] Prior [78]
[6] Ibid [92]
[7] Ibid [89].Prior v QUT [75] & [76];
