Imagine you are a lawyer in a court case and you have to decide what evidence to present. In today’s digital world, there is a wealth of information that can be used as evidence. Digital evidence such as emails, electronic documents and social media posts can often provide relevant information quickly and effectively.

  • But how relevant is digital evidence really?
  • How can they best be used?
  • And what are the challenges in using them?

In this blog post, we will look at the power of bits and bytes and how digital evidence can be used in court proceedings. We will discuss the different types of digital evidence and their advantages and disadvantages. We will also look at the challenges of using them and discuss how lawyers and courts can ensure that digital evidence is authentic and unaltered.

Contents

I. Definition of digital evidence
II Relevance of digital evidence
A. Authenticity and integrity of digital evidence
B. Data analysis and data visualisation
C. Identification of evidence
III Types of digital evidence
A. Electronic documents
B. E-mails
C. Social media
D. Forensic data
V. Challenges in the use of digital evidence
A. Technical challenges
B. Legal challenges
IV. The role of experts in digital forensics
V. The importance of cooperation between law enforcement and business
VI. International aspects of digital evidence
VII.The Future of Digital Evidence
VIII. Digital evidence: a challenge and an opportunity for lawyers and courts

Definition of Digital Evidence

Digital evidence plays an increasingly important role in today’s court proceedings. It can quickly and effectively provide relevant information and help bring the truth to light. But how exactly is digital evidence defined and what types of evidence does it include?

First of all, digital evidence is any information that is in digital form. This includes not only files such as Word documents or PDFs, but also emails, chat messages, social media posts and even metadata such as timestamps and IP addresses. However, unlike traditional evidence, such as written documents or witness statements, digital evidence is often easy to manipulate. It is therefore important to verify the authenticity and integrity of this evidence.

But what do authenticity and integrity mean in the context of digital evidence? Authenticity refers to the fact that the information actually comes from the person who claims to have created it. In the case of electronic documents, authenticity can be verified by a digital signature or a hash function, for example. Integrity means that the information has remained unchanged since its creation. A hash function can also be used here to ensure that the document or file has not been manipulated.

An example of the importance of authenticity and integrity of digital evidence is provided by the judgement of the Federal Supreme Court (BGH) of 17 February 2011 (ref.: 5 StR 386/10). This case concerned the use of e-mails as evidence. The defence had argued that the emails were forged and therefore could not be used as evidence. However, the BGH ruled that the authenticity of the emails could be confirmed by examining the header information and checking the hash values. The emails were thus admitted as evidence.

In addition to authenticity and integrity, other factors also play a role in the use of digital evidence. For example, data analysis and visualisation techniques can help to use large amounts of data more effectively. Furthermore, digital evidence can help to establish evidence more quickly. An example of this is provided by the ruling of the Berlin Regional Court of 27 November 2019 (Ref.: 501 Js 378/17). This case concerned an accusation of incitement to hatred on Facebook. With the help of search queries in the Facebook accounts of the accused, the investigating authorities were able to quickly and easily find relevant posts and thus gather evidence.

Overall, digital evidence can therefore be a powerful tool in court proceedings. However, it is important to ensure that they are authentic and unaltered to guarantee their usability as evidence.

The type of digital evidence can also play a role. Some important types of digital evidence are explained in more detail below.

Relevance of digital evidence

Digital evidence can be of crucial importance in many court proceedings. It can help reconstruct events, corroborate or refute witness statements and prove the guilt or innocence of defendants. Some examples of the use of digital evidence in different types of court proceedings are explained in more detail below.

Criminal proceedings

Digital evidence plays an important role in many criminal proceedings. It can help to prove the guilt or innocence of defendants or help to determine the identity of perpetrators.

An example of the use of digital evidence in criminal proceedings is provided by the ruling of the Regional Court of Cologne of 18 March 2016 (Ref.: 88 KLs 27/15). In this case, emails and electronic documents were used as evidence to prove the allegation of corruption in the awarding of contracts.

Civil proceedings

Digital evidence can also be crucial in civil proceedings. They can help to influence the outcome of disputes or help to prove claims for damages.

An example of the use of digital evidence in civil proceedings is provided by the judgment of the Nuremberg-Fürth Regional Court of 15 February 2018 (Ref.: 10 Ns 305 Js 19278/17). In this case, posts on the Facebook profile of the defendant were used as evidence to prove the accusation of insult.

Labour law proceedings

Digital evidence can also be important in labour law proceedings. They can help prove allegations of workplace violations or help prove claims for damages.

An example of the use of digital evidence in labour law proceedings is provided by the ruling of the Berlin Labour Court of 28 November 2017 (Ref.: 29 Ca 5454/17). In this case, emails were used as evidence to prove allegations of workplace violations.

Overall, digital evidence can help to influence the outcome of court proceedings. However, it is only relevant if it is authentic and unaltered. It is important to ensure that digital evidence is collected and used in accordance with applicable laws to ensure its usability as evidence.

Authenticity and integrity of digital evidence

The authenticity and integrity of digital evidence are critical to its usability as evidence. There are various methods to ensure that digital evidence is authentic and unaltered. Some of these methods are explained in more detail below.

Digital signatures

Digital signatures are an important tool to verify the authenticity of digital evidence. A digital signature is a type of electronic signature that a person or organisation can place on a document or file. The digital signature confirms that the document or file originates from the person or organisation claiming to have created it.

An example of the use of digital signatures is provided by the judgement of the Federal Supreme Court of 17 February 2011 (Ref.: 5 StR 386/10). In this case, e-mails were used as evidence. The authenticity of the e-mails was confirmed by a check of the digital signatures.

Hash functions

Hash functions are another important tool for verifying the integrity of digital evidence. A hash function is an algorithm that converts a certain amount of data into a fixed length of data. The hash value can be used to ensure that the data has remained unchanged since its creation.

An example of the use of hash functions is provided by the Federal Court of Justice’s ruling of 6 November 2018 (Ref.: 1 StR 83/18). In this case, images and videos on a seized laptop were used as evidence. The authenticity of these images and videos was confirmed by a check of the hash values.

Witnesses

Witnesses can also help to confirm the authenticity of digital evidence. A witness can confirm that he or she actually received the document or file from the person who claims to have created it. A witness can also confirm that the document or file has remained unchanged since it was created.

An example of the use of witnesses is provided by the ruling of the Regional Court of Cologne of 18 March 2016 (Ref.: 88 KLs 27/15). In this case, emails were used as evidence. The authenticity of these emails was confirmed by witness statements.

Overall, there are various methods to ensure that digital evidence is authentic and unaltered. It is important to choose the appropriate method for the case and to ensure that the evidence meets the requirements of the court.

Data analysis and data visualisation

Digital evidence can not only help to reconstruct events and prove the guilt or innocence of defendants, but also help to establish evidence more quickly and easily. Data analysis and data visualisation are crucial methods for finding relevant information and presenting it in an understandable way.

  • Data analysis

Data analytics refers to the methods of examining data to identify patterns, trends or relationships. In the context of digital evidence, for example, data analysis can help extract relevant information from emails, social media posts or other digital databases.

An example of the use of data analytics is provided by the ruling of the Berlin Regional Court of 14 May 2020 (Ref.: 504 KLs 21/19). In this case, large amounts of data in the form of chat transcripts, emails and other digital documents were used as evidence. The data was analysed by forensic experts to identify and extract relevant information.

  • Data visualisation

Data visualisation refers to the presentation of data in the form of charts, graphs or other visual representations. In the context of digital evidence, data visualisation can help make complex information more understandable and clarify relationships.

An example of the use of data visualisation is provided by the judgement of the Regional Court of Stuttgart of 30 March 2021 (Ref.: 13 KLs 92 Js 41455/18). In this case, large amounts of data in the form of telephone connection data and chat logs were used as evidence. The data was analysed by forensic experts and visualised in the form of graphs and diagrams to show connections between the persons involved.

Overall, data analysis and data visualisation can help to find relevant information more quickly and present it in an understandable way. They are therefore important tools when using digital evidence in legal proceedings. However, it is important to ensure that data is collected and analysed in accordance with applicable laws to ensure its usability as evidence.

Identification of evidence

The identification of evidence is an essential step in the preparation of court proceedings. Digital evidence can help speed up this process and find relevant information more quickly and easily.

  1. Search queries: Searching email inboxes or social media accounts can help find relevant information. Specific keywords or search terms can be used to find specific information. The use of search queries can significantly reduce the time needed to find evidence. An example of the use of search queries is provided by the Federal Court of Justice’s ruling of 6 November 2018 (Ref.: XI ZR 210/17). In this case, emails were used as evidence to prove a bank’s breach of duty in granting a loan. By using search queries, relevant information could be found quickly and used as evidence.
  2. Data analysis: As already mentioned, data analysis can help to extract relevant information from digital evidence. Through the use of data analysis, correlations between different data sources can be identified. This can also involve linking different data sources together to provide a more comprehensive picture of events. An example of the use of data analytics is provided by the ruling of the Munich I Regional Court of 23 May 2019 (Ref.: 7 O 25393/16). In this case, data analytics was used to determine the extent of damage in an economic offence. By using data analytics, it was possible to link different data sources and accurately determine the extent of the damage.
  3. Forensic experts: Forensic experts can play an important role in the identification of digital evidence. These experts can help identify data sources and extract relevant information. They can also help secure data sources and ensure the integrity of the evidence. An example of the use of forensic experts is provided by the judgment of the Regional Court of Frankfurt am Main of 22 February 2018 (Ref.: 5/29 KLs 4030 Js 209080/14). In this case, forensic experts were used to secure emails as evidence and extract relevant information.

Overall, digital evidence can help to identify relevant information faster and easier. Through the use of search queries, data analysis and forensic experts, digital evidence can be used effectively to prepare court cases. However, it is important to ensure that the identification of evidence is conducted in accordance with applicable laws to ensure its usability as evidence.

Types of digital evidence

Digital evidence can come in different forms. Here are some of the most important types of digital evidence:

Electronic documents

Electronic documents are an important form of digital evidence as they are often used in business and communication processes. However, electronic documents are also susceptible to tampering, which can challenge their use as evidence.

It is therefore important to verify the authenticity and integrity of electronic documents to ensure their usability as evidence. There are various methods for this, such as digital signatures or time stamps.

Digital signatures

Digital signatures are a tool for verifying the authenticity of electronic documents. A digital signature is a cryptographic code that authenticates the electronic document and confirms the identity of the signatory. A digital signature can help ensure that the document has not been tampered with and that the signer is indeed the person who signed the document.

Timestamp

A timestamp is a tool used to verify the integrity of electronic documents. A timestamp is a digital confirmation that the document was created or modified at a specific time. A timestamp can help ensure that the document was valid and unchanged at the time it was created or modified.

An example of the use of digital signatures and time stamps is provided by the ruling of the Higher Regional Court of Hamm of 28 June 2017 (Ref.: 11 U 50/16). In this case, digital signatures and time stamps were used as evidence to confirm the validity of electronic documents.

Overall, electronic documents are important digital evidence, but they are vulnerable to manipulation. However, by using digital signatures and time stamps, the authenticity and integrity of electronic documents can be verified to ensure their usability as evidence.

E-mails

Emails are an important piece of digital evidence and can play a crucial role in court proceedings.

Emails can contain a variety of information, such as correspondences between different parties, contract details or order confirmations. This information can be used in court proceedings to document the course of events or to clarify the responsibilities of parties.

Another advantage of emails as digital evidence is that they usually have a clear time stamp. This means that the exact time of sending or receiving is documented, which can increase the authenticity of the email as evidence.

An example of the use of emails as evidence is provided by the ruling of the Federal Supreme Court of 21 February 2017 (Ref.: VI ZR 402/15). In this case, emails were used as evidence to prove the violation of the right of personality.

However, it is important to note that emails can also be forged or manipulated. Therefore, it is important to verify the authenticity and integrity of emails as evidence to ensure their usability as evidence. For this purpose, digital signatures or time stamps can be used to confirm the validity of the email.

Social media

Social media platforms such as Facebook, Twitter or Instagram are also important digital evidence that can be used in court proceedings.

Posts on these platforms can contain a wealth of information about individuals and their activities. For example, Facebook posts or tweets can provide information about people’s political views or behaviour. Instagram posts may contain details about people’s interests or lifestyles.

This information can be used in court proceedings to document the behaviour or intentions of defendants or to determine the identity of perpetrators. An example of the use of social media posts as evidence is provided by the judgement of the Munich Local Court of 16 March 2017 (Ref.: 953 Cs 412 Js 212122/15). In this case, Facebook posts were used as evidence to prove the charge of incitement of the people.

However, it is important to note that posts on social media platforms can easily be faked or manipulated. Therefore, it is important to verify the authenticity and integrity of social media posts as evidence to ensure their usability as evidence. For this purpose, screenshots or digital signatures, for example, can be used to confirm the validity of the posts.

Forensic data

Forensic data is an important form of digital evidence and is often collected by law enforcement agencies to investigate crimes.

Forensic data can come from a variety of sources, such as mobile phones, computers, surveillance cameras or other electronic devices. This data can help reconstruct the course of events or gather evidence of a crime.

Forensic data is often analysed and examined by experts in the field of forensic technology to ensure that it can be used as evidence. This involves the use of various techniques and tools to ensure the integrity and authenticity of the data and that it can be used in legal proceedings.

An example of the use of forensic data as evidence is provided by the judgement of the Dortmund Regional Court of 15 June 2020 (Ref.: 13 KLs 46/19). In this case, mobile phone backups were used as evidence to prove the accusation of drug trafficking.

However, it is important to note that forensic data can also be manipulated or falsified. Therefore, it is important to verify the authenticity and integrity of forensic data as evidence to ensure its usability as evidence. For this purpose, various techniques and tools are used to ensure that the data have not been manipulated and that they can be used in legal proceedings.

Challenges in the use of such evidence

Although digital evidence offers many advantages, there are also some challenges in using it. The technical and legal challenges related to digital evidence are explained in more detail below.

Technical challenges

  1. Collection of digital evidence

The collection of digital evidence can be challenging, especially when large amounts of data are involved. The collection of digital evidence often requires specialised technical knowledge and tools to ensure that the data is authentic and unaltered.

  1. Analysis of digital evidence

Analysing digital evidence can also be challenging. The data often needs to be analysed in different ways to find relevant information. Different tools and techniques can be used, such as data analysis software or data visualisation tools.

  1. Securing digital evidence

It is important to ensure that digital evidence remains secure and unaltered during collection and analysis. Various measures can be taken to do this, such as using encrypted data transfers or storing data on secure servers.

Legal challenges

  1. Admissibility of digital evidence

The admissibility of digital evidence can be controversial in some cases. It is important to ensure that digital evidence is admissible under the applicable rules of evidence. In doing so, lawyers and courts should take into account the specific requirements for digital evidence in the respective country or state.

  1. Data protection challenges

The use of digital evidence can also pose data protection challenges. It is important to ensure that digital evidence is collected and used in accordance with applicable data protection laws. In doing so, lawyers and courts should ensure that they have the consent of the data subjects to use the data or that the use of the data is in the public interest.

Overall, the use of digital evidence is an important development in evidence. Digital evidence offers many advantages, such as the ability to analyse information more effectively and gather evidence more quickly. However, it is important to understand the technical and legal challenges associated with digital evidence and to ensure that digital evidence is authentic and unaltered. Lawyers and courts should familiarise themselves with the latest technologies and legal developments related to digital evidence to ensure that it can be used effectively.

The role of experts in digital forensics

Experts in digital forensics play an important role in the collection and analysis of digital evidence. These experts have special skills and knowledge to identify, collect and analyse digital evidence. They can also help detect tampering with digital evidence and verify the authenticity of evidence.

Lawyers and courts can involve experts in digital forensics to better understand their cases and improve the collection and analysis of digital evidence. Experts in digital forensics can also help increase the admissibility of digital evidence by ensuring that it is authentic, unaltered and complies with applicable data protection laws.

There are various techniques and skills that digital forensics experts can use to analyse digital evidence. These include, for example, the recovery of deleted data, the review of metadata and the use of specialised tools and programmes. It is important that lawyers and courts understand what skills and techniques experts in digital forensics use and how they can involve these experts in their work.

Overall, experts in digital forensics can help to use digital evidence more effectively and efficiently and improve the quality of evidence. Lawyers and courts should therefore be able to involve experts in digital forensics in their work and rely on their knowledge and skills.

The importance of cooperation between law enforcement agencies and businesses

Cooperation between law enforcement and businesses is often crucial in the collection of digital evidence. In some cases, law enforcement agencies may request digital evidence from businesses to investigate crimes. This evidence can come from a variety of sources, such as email inboxes, social media accounts or computers.

However, cooperation between law enforcement and businesses can also present challenges. Companies need to ensure that they comply with applicable data protection laws and regulations when sharing digital evidence. It is also important to ensure that digital evidence is authentic and unaltered, and that cooperation between businesses and law enforcement is transparent and fair.

To overcome these challenges, companies and law enforcement agencies should have clear procedures and guidelines for cooperation in the collection of digital evidence. Businesses should also ensure that their employees are aware of the risks and implications of sharing digital evidence.

Overall, effective cooperation between law enforcement and businesses can help detect crime and improve the collection of digital evidence. However, companies should ensure that they comply with applicable laws and regulations and that cooperation is fair and transparent. Lawyers and courts can help ensure that this cooperation is effective and lawful, and that digital evidence is used appropriately in legal proceedings.

International aspects of digital evidence

The use of digital evidence in court proceedings can also involve international aspects. Digital evidence can originate from different countries in today’s globalised world, which can complicate the collection and analysis of this evidence. It is important to understand the international laws and regulations that may affect digital evidence to ensure that evidence is legal and admissible.

In some cases, international agreements and treaties can help regulate the use of digital evidence. For example, there is the Council of Europe Convention on Cybercrime, which facilitates the prosecution of crimes related to computers and digital evidence. It is also important to understand the data protection laws and regulations of different countries, as they can affect the collection and transmission of digital evidence.

However, collecting digital evidence from different countries can also present challenges. For example, cultural differences and language barriers can make cooperation between law enforcement and businesses difficult. It can also be difficult to lawfully collect and use digital evidence in different countries, especially when privacy and human rights protections are at stake.

Overall, international aspects of digital evidence can be a complex and demanding challenge. Lawyers and courts should be aware of how international laws and regulations can affect digital evidence and the challenges of collecting and analysing evidence from different countries. Collaboration between law enforcement and businesses can help overcome these challenges and ensure that digital evidence is lawful and admissible.

The future of such evidence

Digital forensics is a fast-moving and constantly evolving field, and the future of digital evidence holds many interesting developments. Below are some of the key trends and technologies that could shape the future of digital evidence:

  • Artificial intelligence and machine learning: Artificial intelligence and machine learning can help to analyse digital evidence faster and more effectively. For example, software based on machine learning might be able to sift through large amounts of data in less time and identify relevant information more quickly.
  • Blockchain technology: Blockchain technology provides a secure and decentralised way to store and transfer digital evidence. This can ensure the authenticity and immutability of digital evidence.
  • Internet of Things (IoT): The Internet of Things comprises a multitude of devices that are networked with each other and can collect data. This data can be used as digital evidence to reconstruct events or gather evidence of crimes.
  • Virtual and augmented reality: Virtual and augmented reality can help present digital evidence in an interactive and immersive way. For example, virtual simulations of crime scenes could help courts and juries better visualise the events of a crime.

These and other technologies will shape the future of digital evidence and change the way lawyers and courts collect and use digital evidence. It is important to keep abreast of these developments and to ensure that the use of digital evidence is in accordance with applicable laws and regulations.

The issue of digital evidence and its use may also affect the creation and legal assessment of smart contracts by lawyers. Smart contracts are digital contracts based on blockchain technology that are automatically executed when certain conditions are met. As smart contracts are executed on digital platforms, they can be used as digital evidence in court proceedings.

Lawyers can advise on the creation of smart contracts and ensure that they comply with applicable laws and regulations. They can also help with the legal assessment of smart contracts to ensure that they can be used as evidence in disputes.

It is important that lawyers understand the latest technologies and developments in digital evidence to ensure that they can provide appropriate advice to their clients. The use of smart contracts is expected to continue to grow, further highlighting the importance of digital evidence in the practice of law.

Digital evidence: A challenge and opportunity for lawyers and courts

In summary, digital evidence is playing an increasingly important role in court proceedings. They offer numerous advantages, such as the ability to analyse information more effectively and gather evidence more quickly. However, the use of digital evidence also presents challenges, such as technical and legal challenges.

It is important that lawyers and courts familiarise themselves with the latest technologies and legal developments related to digital evidence to ensure that it can be used effectively. It is also important to ensure that digital evidence is authentic, unaltered and collected and used in accordance with applicable data protection laws.

Overall, digital evidence can help to get a fuller and more accurate picture of a case and thus contribute to a fairer judgment. Lawyers and courts should therefore take advantage of the opportunities offered by digital evidence and prepare for the future development of this important field.