IM as Evidence

Instant Messaging (IM) has become a very popular medium of communication nowadays among friends, students, colleagues and even business associates. Better than the email which, although appears instantly in the recipient’s inbox, inevitably involves time lag to allow for its composition, opening, digesting of information and eventual reply. This multilayered technology thus provides the convenience of email coupled with the immediacy of a phone call. As I’m studying Evidence at the moment, it does make me wonder whether IM information would be admissible as evidence and whether it would be viewed as reliable.

The cases which I have come across are all from America and involve privacy concerns. This is unlikely to be an issue in Singapore as we do not have any explicit privacy laws here. However, there are certainly problems in relation to the reliability of such information, stemming from the ability to trace and record them.

Essentially, IM messages are no more than words on a screen. They can be sent by a variety of devices and they are mainly free online services that do not require much subscriber information. Sometimes the setting up of an account requires no more than a screen name and password. The content of the text passes through the ISPs and can only be found on the computing device of the participants if some effort has been made to preserve them. This of course presupposes that the IM service used has a recording or archiving function and that it has been enabled (I remember that ICQ and MSN either did not have one in its earlier years and that it is common requirement even nowadays for people to specifically enable such features).

If no archiving functions are available, the only foreseeable (and easiest) means by which such information can be recorded is by copying-and-pasting them in a WORD document. However, this method is likely to raise a number of concerns in relation to its integrity and reliability. For example, the cut-and-paste method may suffer from incompleteness (missing sections), inaccuracies (omitted words or cut off sentences or misinterpretations of the shorthand or acronyms adopted), or they may even be subject to editing. Even if no human input or error is involved, the information could be altered by the spell checker on WORD. Such alterations may go unnoticed.

Of course one method to avoid such concerns may be to use a screen or video capture of the conversations as they take place, or screen prints, or a third party software designed to archive IM conversations, but all these necessarily involves advanced planning. Unless it’s a stake-out or sting operation, I suspect that the majority of instances where such information (or any information) is relevant is after the fact of a crime or civil wrong.

To my knowledge there have been no Singapore (or Commonwealth) cases on point (Of course, I may be completely wrong on this), but it is certainly an interesting area to think about and I’m sure that as the technology becomes even more prevalent, it will only be a matter of time before the courts will have to deal with it.