Website evidence goes Wayback

Articles Written by Christine Ecob (Partner), Kevin Lynch (Partner), Alex Kench

Parental cautions  to their millennial children that “the internet is forever” now have an echo in Australian litigation following the recent decision of the Federal Court in Dyno Nobel Inc v Orica Explosives Technology Pty Ltd .  His Honour, Justice Burley, exercised his discretion to waive the usual rules of evidence and admit historical copies of internet pages stored on a digital database on the basis that copies stored on a digital archive were accurate representations of those webpages at a particular point in time.

The Wayback Machine archive

The archive in this case is made available on a website known as the ‘Wayback Machine’, which is administered by the Internet Archive. The Wayback Machine uses programs (known as ‘crawlers’) which browse the internet and record data from websites, preserving a copy of webpages at the point of capture by the crawler. These copies are stored in a digital library, where a “point in time” copy of the webpages can be freely accessed by users. The Wayback Machine has been operating since 1996, and has since amassed billions of files and webpages in its database.  

Hearsay

Attempts to adduce evidence from the Wayback Machine have run up against the hearsay rule, without satisfying the business records exception.

Last year in the patent case of Voxson Pty Ltd v Telstra Corporation Limited (No 10), Justice Perram stated that relying on the truth of Wayback Machine materials inherently relies on a hearsay representation by the Internet Archive as to the veracity of its materials.[1] His Honour found that Wayback Machine evidence could not be admitted under any of the exceptions to the hearsay rule, and specifically excluded Wayback Machine evidence from being considered ‘business records’ for the purposes of section 69(1) of the Evidence Act 1995 (Cth). In that decision, there was no evidence before the Court explaining the processes or outcomes produced by the Wayback Machine.[2]

Wayback evidence allowed on a discretionary basis

In Dyno v Orica, an affidavit was provided by Mr Christopher Butler, the office manager at the Internet Archive, which shed some light into what the Wayback Machine does and how it produces its data. Noting the explanation and evidence of how the Wayback Machine operates, Justice Burley also dismissed the notion that Wayback Machine evidence constituted business records, but accepted that the Wayback Machine pages ‘are likely to be a reliable indication of the content of the relevant website at different points of time.’[3] Justice Burley noted that the representations made in the Wayback Machine materials were not challenged by Orica, who operated the relevant website at the relevant point in time, but who had not kept records to verify or correct the Wayback Machine representations.

In reaching his decision, Justice Burley noted that there was no genuine dispute regarding the accuracy of the Wayback Machine materials, and that there was a genuine public interest in ensuring that all evidence which was relevant and of probative value was before the court. The Wayback Machine materials were admitted subject to a warning that the evidence proved the presence of the relevant website and its contents on the dates in questions, and was not proof of the truth of any facts of those pages.

Wayback in the future

This ruling shows the potential for Wayback Machine materials to be allowed as evidence of the presence and content of a website at a certain point in time. In this case, it was significant that there was evidence of the Wayback Machine operations and that the archived website belonged to one of the parties, with no discovery of the relevant historical material. This limited, discretionary acceptance may see the Wayback Machine archive going beyond an investigative tool to serve as a source of evidence in contexts including intellectual property cases, commercial disputes, misleading or deceptive conduct actions and justification defences in defamation.

 

[1] [2018] FCA 376 [35].

[2] At [40].

[3] At [21].

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