Currently, as a result of the technological revolution that marked the last century, the way people interact has profoundly changed. Information that was once shared by letter or fax is now sent via email or through the chat function of a social network, such as WhatsApp.
This shift has not been limited to the social sphere; it has also become part of professional relationships and business activity, with an immediate impact and reflection in the legal system, more specifically in civil proceedings, where digital evidence has begun to be used as a means of proof.
In general terms, digital evidence refers to evidence that is produced digitally and whose storage or transmission occurs through computer devices.
This type of evidence may be found, among other formats, in photographs, emails, and screenshots. In this sense, messages exchanged between two individuals through the WhatsApp application may be submitted in court proceedings when their relevance so justifies, either by presenting a screenshot of the conversation itself or through a technical forensic examination of the mobile phone belonging to the party submitting the evidence.
(Unfortunately) there is still no national legislation that enshrines a specific framework for the use of digital evidence in civil proceedings. Nevertheless, there are legal instruments that provide a starting point for its application.
With regard to the evidentiary value of digital evidence, this will vary depending on the type of digital evidence in question.
Where an electronic document is concerned, reference must be made to Regulation (EU) No. 910/2014, which governs this matter. The evidentiary force of an electronic document — i.e., the capacity of a piece of evidence to convince the judge of the truth of the facts it represents — depends on the type of digital signature affixed to it.
Electronic signatures, as a mechanism for authenticating an electronic document, are subdivided into two main categories: simple signatures and advanced or qualified signatures.
As for other forms of digital evidence that do not have a specific legal framework governing their evidentiary value, these will fall under the general principle of the free assessment of evidence by the judge.
The main challenge raised by digital evidence concerns its authenticity and the threat posed to it by new technologies, particularly through the use of artificial intelligence tools.
Authenticity is crucial in the use of digital evidence, given that the advent of digital tools and artificial intelligence has facilitated manipulation — both at the source (Deepfake) and during transmission (Photoshop).
The development of such tools has increasingly refined these manipulations, making it ever more complex to identify distortions in digital evidence.
When used to manipulate the perception of third parties, these tools represent genuine sources of disinformation and may constitute significant obstacles to the discovery of the truth.
Digital evidence is a procedural reality that is here to stay, reflecting the growing digitalisation of personal and professional relationships.
Judges are frequently confronted — and will increasingly be confronted — with challenges inherent to this type of evidence, particularly with regard to ensuring its authenticity.
The challenge we face is the development of criteria and mechanisms within the Portuguese legal system that ensure proper adaptation to this modernisation of evidentiary law, under penalty of it becoming obsolete in the face of the proliferation of digital evidence.
The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.