The issues of proper and most acceptable formalization of data / files obtained on the Internet are highly relevant today. This is mainly because the World-Wide Web has by now deeply penetrated modern legal relations.
It is common knowledge that the success of litigation depends on a number of circumstances where the degree and quality of “preparedness” of evidence occupy a special place. The following basic factors that determine the specific nature of evidence should be highlighted in this respect. First, the evidence should meet basic requirements of the procedural law, i.e. be relevant and admissible. Second, the specific nature of the process of proving depends on litigation: the evidence in commercial litigation may be given at any stage of proceedings, unlike civil proceedings where the “rule of preliminary hearing” is applied. Third, the evidence to be presented depends on the right infringed, the specific nature of the infringement, and possible ways of protecting the right so infringed.
The foregoing factors are no exception for data / files obtained on the Internet. Thus, giving these materials probative value is a challenge that requires an efficient solution.
Why is the Internet so hard to catch?
Internet is, first and foremost, a dynamic system of permanent data exchange. It is noteworthy that the specific nature of proving any fact that took place on the Internet is characterized by the following main features:
(i) the form and methods of presenting the information;
(ii) the information coverage area;
(iii) the rate of data exchange;
(iv) the constantly changing web content;
(v) the limited access to information on domain names registrants; and
(vi) the lack of a unified approach to identifying those responsible for any infringement on the Internet.
It is also worth mentioning that the methods of proving any infringements that occur on the Internet are differentiated depending on the specific nature of the infringement concerned. As is known, infringements on the Internet can conditionally be divided into two main groups: the first one is website content infringements and the second one is infringements associated with the unauthorized use of intellectual property in domain names. Thus, in the event of any intellectual property infringement on the Internet, evidence collected usually relate either to (i) website content or to (ii) domain names.
How can an infringement be evidenced?
If the website contains any information, which, in the claimant’s opinion, supports the fact of the infringement, the main task is to fix the relevant website content.
As the practice shows, the usual web page printout may possibly not be enough. Furthermore, the claimant runs certain procedural risks in this case: this kind of evidence in terms of its admissibility may, in a sense, be a “weakness” in the overall litigation strategy.
Unlike web page notarization, which is widely practiced in the Russian Federation, the Ukrainian laws currently do not allow the litigants to take advantage of similar methods. The attempts to circumvent such practices by (i) using in Ukraine any web pages notarized in any other country, or (ii) by having a translator’s signature notarized, which signature is put on a web page printout translated from one language into another, usually have little success.
For this reason, there are two main ways of web page content fixation, which are most widely applied in Ukraine: (i) the on-site examination of evidence as a procedural action, and (ii) the submission of a specialist opinion to a court.
The on-site examination of evidence is a procedural action which permits not only an examination of the contents of a web page, but also the fixation of the results of such examination in an absolutely clear document called “on-site evidence examination and examination record (protocol)”. The distinctive “advantage” of such method of fixation of information is that the process takes place in the presence of the judge and the parties to the proceedings. Thus, for example, in accordance with Article 39 of the Code of Ukraine on Commercial Proceedings, “the commercial court may conduct an on-site examination and examination of written and material evidence when it is difficult to produce such evidence. Based on the results of such examination, a respective record (protocol) shall be drawn up and signed by the judge. Such record (protocol) shall be submitted to the case file”.
Therefore, when drafting a respective motion to be filed with the court, one should carefully approach the task of substantiating the following aspects: (і) the Internet is the site of location of certain evidence; (ii) a web page is the evidence falling within the scope of application of the above provision; (ііі) it is difficult to produce such evidence.
Furthermore, one should not underestimate such means of fixation of evidence available on the Internet as the examination of a web-page by a certified expert in “Research of telecommunication systems (equipment) and tools”. If such examination is performed in the context of the so-called “pre-trial expert examination”, a specialist opinion is drawn up based on the examination results by the respective expert in the research of telecommunication systems. Moreover, such opinion may be issued in a complex form: for example, this is advisable when there is need for some special knowledge about intellectual property objects used in the Internet.
One should also take into account that specialist opinions provided by a party other than through the forensic examination procedure are not admitted by the courts as expert opinions and are evaluated together with the other evidence collected in the case. However, should the forensic expert examination opinion contradict the earlier provided specialist opinion, this may serve at least as the grounds for summoning forensic experts for the court hearing and requesting their additional explanations regarding the factual background of the case.
In view of the above, one may also employ the third scenario representing a conditional “symbiosis” of the above scenarios. Thus, the interested party may submit a specialist opinion and file a respective motion for examination of the evidence available on the Internet and for the summons of the experts, who have issued the respective opinion, for the court hearing. Then, the examination of the evidence available on the Internet will be conducted at the court hearing not only with the participation of the parties but also with the involvement of independent specialists who have sufficient experience and qualifications as well as their own technical tools for the performance of such examination.
It should also be mentioned that until recently the .UA Domain Administrator offered such services as “Information about domain names and web-sites as evidence for the court”. Currently these services are being provided by Name Space Ltd, a provider of remote web services in domain names industry, communication, search and advertising. Upon a reasonable request, these services can be used to obtain information about a domain name, as well as information about a web-site and about the information thereon. In particular, such information may include information about the owner of the web-site, its hosting (i.e. location), the information posted on the web-site, as well as screenshots of web-site pages. As a result, the requesting party will receive a written response executed on the official letterhead of the Name Space Ltd which can be submitted to the court to confirm the facts invoked by the plaintiff or the defendant.
Therefore, despite the objective difficulties arising in the process of proving the fact of an infringement on the Internet, there exist some applicable and acceptable ways of gathering admissible and relevant evidence proving such infringement. One should also bear in mind that timely and properly gathered evidence significantly increases the chances of the positive outcome of the case.
It is common knowledge that the success of litigation depends on a number of circumstances where the degree and quality of “preparedness” of evidence occupy a special place. The following basic factors that determine the specific nature of evidence should be highlighted in this respect. First, the evidence should meet basic requirements of the procedural law, i.e. be relevant and admissible. Second, the specific nature of the process of proving depends on litigation: the evidence in commercial litigation may be given at any stage of proceedings, unlike civil proceedings where the “rule of preliminary hearing” is applied. Third, the evidence to be presented depends on the right infringed, the specific nature of the infringement, and possible ways of protecting the right so infringed.
The foregoing factors are no exception for data / files obtained on the Internet. Thus, giving these materials probative value is a challenge that requires an efficient solution.
Why is the Internet so hard to catch?
Internet is, first and foremost, a dynamic system of permanent data exchange. It is noteworthy that the specific nature of proving any fact that took place on the Internet is characterized by the following main features:
(i) the form and methods of presenting the information;
(ii) the information coverage area;
(iii) the rate of data exchange;
(iv) the constantly changing web content;
(v) the limited access to information on domain names registrants; and
(vi) the lack of a unified approach to identifying those responsible for any infringement on the Internet.
It is also worth mentioning that the methods of proving any infringements that occur on the Internet are differentiated depending on the specific nature of the infringement concerned. As is known, infringements on the Internet can conditionally be divided into two main groups: the first one is website content infringements and the second one is infringements associated with the unauthorized use of intellectual property in domain names. Thus, in the event of any intellectual property infringement on the Internet, evidence collected usually relate either to (i) website content or to (ii) domain names.
How can an infringement be evidenced?
If the website contains any information, which, in the claimant’s opinion, supports the fact of the infringement, the main task is to fix the relevant website content.
As the practice shows, the usual web page printout may possibly not be enough. Furthermore, the claimant runs certain procedural risks in this case: this kind of evidence in terms of its admissibility may, in a sense, be a “weakness” in the overall litigation strategy.
Unlike web page notarization, which is widely practiced in the Russian Federation, the Ukrainian laws currently do not allow the litigants to take advantage of similar methods. The attempts to circumvent such practices by (i) using in Ukraine any web pages notarized in any other country, or (ii) by having a translator’s signature notarized, which signature is put on a web page printout translated from one language into another, usually have little success.
For this reason, there are two main ways of web page content fixation, which are most widely applied in Ukraine: (i) the on-site examination of evidence as a procedural action, and (ii) the submission of a specialist opinion to a court.
The on-site examination of evidence is a procedural action which permits not only an examination of the contents of a web page, but also the fixation of the results of such examination in an absolutely clear document called “on-site evidence examination and examination record (protocol)”. The distinctive “advantage” of such method of fixation of information is that the process takes place in the presence of the judge and the parties to the proceedings. Thus, for example, in accordance with Article 39 of the Code of Ukraine on Commercial Proceedings, “the commercial court may conduct an on-site examination and examination of written and material evidence when it is difficult to produce such evidence. Based on the results of such examination, a respective record (protocol) shall be drawn up and signed by the judge. Such record (protocol) shall be submitted to the case file”.
Therefore, when drafting a respective motion to be filed with the court, one should carefully approach the task of substantiating the following aspects: (і) the Internet is the site of location of certain evidence; (ii) a web page is the evidence falling within the scope of application of the above provision; (ііі) it is difficult to produce such evidence.
Furthermore, one should not underestimate such means of fixation of evidence available on the Internet as the examination of a web-page by a certified expert in “Research of telecommunication systems (equipment) and tools”. If such examination is performed in the context of the so-called “pre-trial expert examination”, a specialist opinion is drawn up based on the examination results by the respective expert in the research of telecommunication systems. Moreover, such opinion may be issued in a complex form: for example, this is advisable when there is need for some special knowledge about intellectual property objects used in the Internet.
One should also take into account that specialist opinions provided by a party other than through the forensic examination procedure are not admitted by the courts as expert opinions and are evaluated together with the other evidence collected in the case. However, should the forensic expert examination opinion contradict the earlier provided specialist opinion, this may serve at least as the grounds for summoning forensic experts for the court hearing and requesting their additional explanations regarding the factual background of the case.
In view of the above, one may also employ the third scenario representing a conditional “symbiosis” of the above scenarios. Thus, the interested party may submit a specialist opinion and file a respective motion for examination of the evidence available on the Internet and for the summons of the experts, who have issued the respective opinion, for the court hearing. Then, the examination of the evidence available on the Internet will be conducted at the court hearing not only with the participation of the parties but also with the involvement of independent specialists who have sufficient experience and qualifications as well as their own technical tools for the performance of such examination.
It should also be mentioned that until recently the .UA Domain Administrator offered such services as “Information about domain names and web-sites as evidence for the court”. Currently these services are being provided by Name Space Ltd, a provider of remote web services in domain names industry, communication, search and advertising. Upon a reasonable request, these services can be used to obtain information about a domain name, as well as information about a web-site and about the information thereon. In particular, such information may include information about the owner of the web-site, its hosting (i.e. location), the information posted on the web-site, as well as screenshots of web-site pages. As a result, the requesting party will receive a written response executed on the official letterhead of the Name Space Ltd which can be submitted to the court to confirm the facts invoked by the plaintiff or the defendant.
Therefore, despite the objective difficulties arising in the process of proving the fact of an infringement on the Internet, there exist some applicable and acceptable ways of gathering admissible and relevant evidence proving such infringement. One should also bear in mind that timely and properly gathered evidence significantly increases the chances of the positive outcome of the case.