Out-Law News | 15 Dec 2008 | 3:05 pm | 2 min. read
By complying with BS 10008, "it is anticipated that the evidential weight of electronic information transferred to and/or managed by a corporate body will be maximised," said national standards body BSI British Standards.
The Standard is called Evidential weight and legal admissibility of electronic information – Specification. It sets out the requirements for the implementation and operation of electronic information management systems, including the storage and transfer of information, and addresses issues relating to authenticity and integrity of information.
Legal admissibility concerns whether or not a piece of evidence would be accepted by a court of law. To ensure admissibility, information must be managed by a secure system throughout its lifetime, which can be for many years. Where doubt can be placed on the information, the evidential weight may be reduced, potentially harming the legal case.
BS 10008 aims to ensure that any electronic information required as evidence of a business transaction is afforded the maximum evidential weight. The process is based on the specification of the requirements for planning, implementing, operating, monitoring and improving the organisation’s information management systems.
It addresses issues related to electronic identity verification, including the use of electronic signatures and electronic copyright systems, as well as the linking of electronic identity to particular electronic documents.
The Standard also addresses document scanning processes and the provision of a full life-history of an electronic object throughout its life.
Alan Shipman, chairman of the BSI committee responsible for the development of BS 10008, said: “The new standard is an important step in ensuring the admissibility of evidence in the UK. BS 10008 has been developed by a wide range of experts in the field of document management and has taken into account all the feedback received during the public comment period.”
Mark Surguy, a litigator at Pinsent Masons, the law firm behind OUT-LAW.COM, welcomed the new standard, but urged caution.
"Adoption of this new standard should form part of a fully-considered strategy for managing information risk," said Surguy. "In that respect it is greatly welcomed."
"Compliance officers, risk managers, in-house legal, Chief Information Secrurity officers and records managements staff should all take congnisance of this new standard and integrate it into their organisations' management processes," he said.
However, Surguy said that businesses should also understand that failure to comply with the standard is not fatal to the admissibility of evidence. "Failure to comply is unlikely in a civil case to result in the evidence being rejected by a court as inadmissible," he said. Similarly, compliance with the standard will not necessarily render what is otherwise inadmissible admissible in a civil case, because most evidence is now admissible in court proceedings in England & Wales, Surguy said.
"What is important is the weight of the evidence," he said. "The inherent problem with electonic evidence is that is can so easily be changed. Arguments are often deployed in court to undermine electronice evidence if there is an opportunity for it to have been altered in any way. This is especially crucial in fraud and dishonesty-type cases."
"The great advantage in court proceedings in being able to demonstrate compliance with the standard is that it will enhance the weight of the electronic evidence and help resist any cynical attempts to avoid liaiblity by reference to spurious arguments about the authenticity of the information," he said. "The issue for practitioners and clients is more one of authenticity (and therefore weight) than admissibility outside of the courtroom."
BS 10008 combines some of the content of the BSI guides, BIP 0008-1, BIP 0008-2 and BIP 0008-3. BIPs 0008-1,2,3 are still current and can be used in parallel to BS 10008.
The Standard costs £100 or £50 for BSI members.