Digital Evidence and the Law: The Power and Validity of Electronic Evidence in the Courts
Once upon a time, evidence in courtrooms consisted of a bloodstained knife, a signed document or a witness’s testimony. Today, however, an email, a WhatsApp message, a social media post, a computer’s hard drive or a CCTV recording has the power to completely alter the course of a case. In our digitalising world, crimes and disputes also leave digital traces. These traces are referred to as ‘digital evidence’ or ‘electronic evidence’ and are becoming an indispensable part of the modern legal system. So, how valid are these digital pieces of evidence in court? What is the legal weight of an email or a digital document? In this article, we will examine the place of digital evidence in our legal system, its validity in court, and the legal procedures for collecting and presenting such evidence.
What Is Digital Evidence and What Is Its Place in Our Legal System?
Digital evidence is any data created, stored or transmitted in an electronic environment that may be useful in resolving a dispute. Our legal system has explicitly recognised the validity of digital evidence.
In Civil Proceedings: The Code of Civil Procedure No. 6100 (HMK) defines the concept of a ‘document’ in a very broad manner, thereby including electronic data within this scope.
Code of Civil Procedure – Article 199
(1) Data such as written or printed texts, deeds, drawings, plans, sketches, photographs, films, images or sound recordings, which are suitable for proving the facts of a dispute, as well as data in electronic environments and similar information carriers, constitute documents under this Code.
Pursuant to this article, emails, computer records, audio and video recordings, SMS messages and instant messaging app (WhatsApp, Telegram, etc.) communications may be used as evidence in civil proceedings (divorce, debt, employment disputes, etc.).
In Criminal Proceedings: The Code of Criminal Procedure No. 5271 (CMK) provides for a specific procedure for the collection of digital evidence. Article 134 of the CMK permits searches to be carried out on computers, computer programmes and databases during a criminal investigation, as well as the making of copies and the decryption of these records to convert them into text form.
Code of Criminal Procedure – Article 134
(1) In an investigation conducted in connection with a criminal offence, where there are strong grounds for suspicion based on concrete evidence and where there is no other means of obtaining evidence, a judge, or in cases where delay would be detrimental, the public prosecutor, shall order a search of the computer, computer programmes and computer logs used by the suspect, the making of copies of computer records, and the decryption of these records to convert them into text.
Conditions for the Admissibility of Digital Evidence For digital evidence to be admissible in court and to form the basis of a judgment, it must meet certain conditions:
Obtained Lawfully
Evidence must not have been obtained through unlawful means. For example, correspondence obtained by unlawfully hacking into a person’s email account is not admissible as evidence under the ‘fruit of the poisonous tree’ principle. Audio or video recordings obtained by breaching the privacy of private life are also generally considered unlawful evidence.
Integrity and Authenticity
It must be proven that the evidence has not been altered, tampered with or corrupted from the moment it was obtained until it is presented in court. For this reason, it is of critical importance to take a ‘forensic image’ of digital evidence during collection and to generate mathematical summaries such as the ‘hash’ value of this copy. A hash value is like a digital file’s fingerprint; even the slightest change to the file completely alters the hash value.
Reliability and Verifiability
The source and authenticity of the evidence must be verifiable. For example, whether an email was actually sent by the person claimed can be determined by examining IP addresses and email header information.
Electronic Signatures and the Power of Digital Documents The Electronic Signature Law No. 5070 states that electronic data created using a secure electronic signature has the force of a written instrument and constitutes conclusive evidence. This means that a digital contract signed with an electronic signature possesses the same legal force as a paper contract bearing a wet signature. This represents a revolutionary step in the digitalisation of commercial life and legal transactions.
Challenges in Practice The use of digital evidence also brings certain challenges. The fact that data can be easily copied, altered or deleted may raise doubts regarding the reliability of the evidence. Furthermore, issues such as accessing encrypted data, retrieving data from cross-border data storage services like cloud computing, and requesting data from social media companies involve both technical and legal challenges. As emphasised in various rulings by the Supreme Court, it is essential that examinations of digital materials are conducted in accordance with due process and that evidence is gathered in a manner leaving no room for doubt.
Digital evidence has become one of the cornerstones of modern justice. Courts can no longer ignore the traces left in the digital world. However, the strength of this evidence depends on it being collected and presented in a manner that is lawful, preserves its integrity, and is verifiable. For legal professionals, mastering the technical and legal aspects of digital evidence, collaborating effectively with forensic IT experts, and presenting this evidence correctly in court are indispensable skills for success in today’s legal practice. Digital traces do not lie; we simply need to know how to interpret and present them correctly.
