Author(s):Several

Admissibility of electronic evidence in the UAE and KSA (Part 1 of 2)

Technology has changed the world in its totality in such a short time. It has indeed become an integral part of the everyday lives of so many. Today we see it incorporated into nearly everything we do. Around 60 years ago, computers where more a sci-fi device than an actual conceivable product which general public will soon own. The following space of 60 years has given a computer or device to nearly every single individual in the more developed region's world, and most businesses rely heavily on electronic devices in the performing of their transactions and general trade. Computers are also now just the tip of the giant technological iceberg, and with more and more crazy innovations entering the market at rates only a teenager would be able to keep up with, the situation can quickly become quite complicated.

In a world where so much is now getting digitalized, it was only a matter of time until crimes also entered the digital realm. More common than digital crimes themselves are the numerous forms of digital evidence that may be put forward in legal cases. Emails, chat conversations, photo and video evidence and more are a big part of so many lives that the potential evidence that may arise from them is vast. In the past, there has been skepticism of electronic evidence, though now, with the expertise into the technologies and their prevalence throughout society, there is no more room for uncertainty. Avoiding and ignoring electronic proofs can lead to grave and blatant injustices and would be an irresponsible path to take.

There are a few elements to consider concerning electronic evidence. These include electronic contracts, electronic records, and electronic signatures. In the past, the internet and online documentation where looked upon skeptically, at least in part, because they were often thought of as being unreliable and easily forged. However, the use of these forms of electronic business practices have become widespread over the years, and as technology has improved and the processes have become more secure, people are more trusting of the technology. Now to a greater extent than ever before are there more secure and official online means to creating records and contracts and therefore it has become the norm. These practices are widely accepted and are backed up by the law.

The UAE is a reasonably technologically savvy country. Its cities are known to the world due in large part to the technological marvels within them. The city of Dubai is something of a testament to this with its high-rise buildings and giant malls. It should not surprise then that the attitude towards electronic evidence, from a legal standpoint, is well supported.

At a most basic level, it is backed up by the Federal Law Number 10 of 1992, which concerns evidence in civil and commercial transactions. The year 2006 introduced Article 17 of this law which entirely involves electronic evidence. Article 17 subsection 3 states that electronic signatures will have the same probative force as a regular hand-written signature as expressed in the law. On top of this, sub-clause 4 covers electronic writings, documents, correspondences, and registers also hold equivalent weight under the law as their hand-written or physical counterparts. This one piece of legislation provides instant, simple recognition and provides power to these electronic elements in business. It was a good base from which to allow electronic evidence to rise and prosper considering that the law was an introduction in 1992.

In one of the cases heard before the Abu Dhabi Court of Cassation (Case 472 of 2014 (197) and decided on 22 July 2014, the Prosecution filed a claim against the accused on the premise that he failed to pay a sum along with interest. The appeal based on some settlement agreement of 2011 and the accused was to settle a difference between the original debt and the balance amount that was outstanding. The court of appeal had canceled the prosecutor’s claim, and consequently, the prosecution filed a petition before Court of Cassation.

The Petitioner’s challenge arose from three causes of action. Firstly, he said that appeal court’s judgment violated the law, improper reasoning and prejudiced the right to defense. The accused based his response to claim to maintain that Petitioner had failed to take in to account the requirements set out in decision passed by Ministry of Economy (Decision Number 74 of 1994) requiring computer-generated data. In the present case, the documents were purchase orders issued by accused and not accompanying invoices but not computer generated data. The supporting documents included an acknowledgment by respondent in electronic communication exchanged between the parties post the invoicing period.

The Court of Cassation relied on Article 4 of Law Number 1 of 2006 concerning Electronic Transactions which provides that information set out in data message shall not lose its legal force, even if they are set out in brief. The only condition under Article 4 is that such information should be accessible within the electronic system of the originator. The Court also relied on Article 10 which provides that a data message and electronic signature shall be admissible as evidence even if the same is not an original or in original format. The Court relying on Article 17 (2) said that reliance on the secure electronic signature is deemed reasonable and held that parties exchanged electronic communication as the accused sent purchase orders and the other party delivered goods to it and the accused signed to the effect that goods were received.

Dubai Court of Cassation passed a similar decision (Matter 241 of 2007 and decided on 28 January 2008) where the Court was referring to Article 17 (2) of above held said that a preserved electronic signature might be relied on unless the contrary gets proven.

Thus, the transactions between the parties were conducted using electronic communications, which is different from the regulation of business transactions using computers.

One thing to note is that the UAE is a relatively young country being, at the time of writing only 46 years old. This young age means that the country would have been born and would have risen with technology and would, therefore, have it highly integrated within the nation.

The UAE is known to have very close ties to Saudi Arabia. They share many of the same political beliefs and are in general, quite familiar with one another. Saudi's law with concerns to this issue is very similar. The Royal Decree Number M/18 of 2007 Article 5 states, very similarly to the UAE, that Electronic transactions, records, and signatures will have full effect and will not be contestable.

The outcomes of the articles in both the UAE and Saudi laws achieve the same goal. They validate the electronic side of business dealings, and those business dealings will be as set in stone like any other form of signing, documentation or contract. Speaking of electronic evidence, are emails and email signatures acceptable as evidence, you may ask?

The Dubai Court of Cassation (Matter Number 277 of 2009 and decided on 13 December 2009) held that according to Article 4 (2) of the above Law, transactions in the form of emails have legal force provided that the information is available in the electronic record. It further held that under Article 10 of the Law, an email or an electronic signature would be acceptable in evidence notwithstanding that communication or the electronic sign is not in its original form.

The Abu Dhabi Court of Cassation (Matter Number 89 of 2014 (246) and decided on 20 October 2014) referring to some partnership dispute held that:

"Whereas the partnership concerning one of the transactions of XYZ company between the Petitioner and Respondent is related to Respondent himself and does not violate the public morals and agreed to terms. Further that the appealed judgment ruled the need for an absolute oath of the Respondent on the premise that business relationship between the parties was over and understandable from electronic correspondence exchanged between the parties.” The case involved a transaction between two parties where the petitioner did not have any evidence supporting his claim. In such cases, the petitioner may ask the defendant to swear or take an oath. The defendant may choose and accept to testify or deny the same. If he refuses to take the oath, the petitioner may swear by himself to support and validate his claim. There are two conditions governing oath – first, being it should not violate public order, and secondly, such act should not contradict existing evidence. The Court of Appeal in this matter noted the email exchanges between the parties and noticed that the parties had terminated their relationship. The Court relying on email correspondence held that oath was disallowed. Court of Cassation reversed the decision and held that either party could take an oath regardless of the underlying evidence.

Before extending this topic to Kingdom of Saudi Arabia, the author will discuss the admissibility of electronic evidence in the DIFC and its implications thereunder. Wait. That’s happening in next issue. Stay tuned. Before extending this topic to Kingdom of Saudi Arabia, the author will discuss the admissibility of electronic evidence in the DIFC and its implications thereunder. Wait. That’s happening in next issue. Stay tuned.