Electronic communications

6.43 Section 71 of the uniform Evidence Acts provides that:

The hearsay rule does not apply to a representation contained in a document recording a message that has been transmitted by electronic mail or by a fax, telegram, lettergram or telex so far as the representation is a representation as to:

(a) the identity of the person from whom or on whose behalf the message was sent; or

(b) the date on which or the time on which the message was sent; or

(c) the message’s destination or the identity of the person to whom the message was addressed.[66]

6.44 In DP 69, the Commissions explored whether s 71 of the uniform Evidence Acts should be amended to use a term broader than ‘electronic mail’. In IP 28 it was suggested ‘electronic commerce’, ‘electronic data transfer’ or ‘electronic messaging’ are possible alternatives.[67]

The technology

6.45 Email is not the only way to transmit messages between computers. Although largely superseded by the Internet, both traditional electronic data interchange (EDI)[68] and application-centric EDI[69] are other forms of data transmission via computer. In addition, communication between computers can be by way of Internet Relay Chats (IRCs) (‘chat room’ correspondence) and instant messaging.[70] While IRCs and instant messaging communications are generally not logged or stored, it is conceivable that a screen shot of conversations could be taken and kept. As well, applications are now being developed that can record and log instant messaging.[71]

6.46 Nor is messaging between computers the only method of electronic communication. Increasingly common is electronic communication by means of mobile phones, especially text messaging or SMS. A PDA device[72] can copy an SMS into an email or word processing program document. It is also possible, though not quite so easily done, to use a mobile phone to forward an SMS to a computer, where it can be printed out. At any rate, all devices that can receive an SMS can forward the message to another device. Electronic communication can also be by way of photos taken with a mobile phone camera, a device becoming increasingly popular.[73]

6.47 Whether computer or phone communications are made via wire, cable or wireless connection, they can all be classified as electronic communications. It is important to be satisified of this as any reform of s 71 that centres on a definition of ‘electronic communication’ must include all these technologies. In particular, modern society’s demand for mobility is fuelling a rapid growth in the use of wireless networking devices, including mobile phones, wireless modems and wireless local area networks (LANs). An understanding of messaging technologies is required before a view can be formed about the suitability of the technical language used. The following paragraphs give a brief outline of the technical aspects of ethernet and telecommunications technology.

6.48 When data are sent across a network, it is converted into electrical signals. These signals are generated as electromagnetic waves (analogue signaling) or as a sequence of voltage pulses (digital signaling). To be sent from one location to another, a signal must travel along a physical path. The physical path that is used to carry a signal between a signal transmitter and a signal receiver is called the transmission medium. There are two types of transmission media: guided and unguided.

6.49 The three most commonly used types of guided media are: twisted-pair wiring, similar to common telephone wiring; coaxial cable, similar to that used for cable television; and optical fibre cable.[74]

6.50 Unguided media are natural parts of the Earth’s environment that can be used as physical paths to carry electrical signals. The atmosphere and outer space are examples of unguided media that are commonly used to carry signals. These media can carry such electromagnetic signals as microwave, infrared light waves, and radio waves.[75]

6.51 Network signals are transmitted through all transmission media as a type of waveform. When transmitted through wire and cable, the signal is an electrical waveform. When transmitted through fibre-optic cable, the signal is a light wave: either visible or infrared light. When transmitted through Earth’s atmosphere or outer space, the signal can take the form of waves in the radio spectrum, including VHF and microwaves, or it can be light waves, including infrared or visible light (for example, lasers).

6.52 Once a transmission medium has been selected, devices are needed that can propagate signals across the medium and receive the signals when they reach the other end of the medium. Such devices are designed to propagate a particular type of signal across a particular type of transmission medium. Transmitting and receiving devices used in computer networks include network adapters, repeaters, wiring concentrators, hubs, switches, and infrared, microwave, and other radio-band transmitters and receivers.

6.53 Microwave transmitters and receivers, especially satellite systems, are commonly used to transmit network signals over great distances. A microwave transmitter uses the atmosphere or outer space as the transmission medium to send the signal to a microwave receiver. The microwave receiver then either relays the signal to another microwave transmitter or translates the signal to some other form, such as digital impulses, and relays it by another suitable medium to its destination.

6.54 Infrared and laser transmitters are similar to microwave systems: they use the atmosphere and outer space as transmission media. However, because they transmit light waves rather than radio waves, they require a line-of-sight transmission path.

6.55 It is clear, then, that whatever the transmission medium, the receiver of the electromagnetic signals converts the signals to some form of electric signal that the device can understand. That being so, the technologies described above can all be defined as ‘electronic communication’.

6.56 By way of an insight into the possibility of unforeseen advancements in electronic communication and a reminder of the need for legislative definitions to accommodate such future developments, the Commissions note that, currently, technology is being developed to use the human body as a ‘wet-wire’ transmitter. The personal area network (PAN)[76] takes advantage of the conductive powers of living tissue to transmit signals. The PAN device, which can be worn on a belt, as a watch, or carried in a pocket, transmits extremely low-power signals (less than 1 MHz) through the body. With a handshake, users could, for example, exchange business cards.

The Commissions’ proposal

6.57 In the light of its exploration of the technology to transmit messages between computers and other devices, the Commissions proposed in DP 69 that s 71 of the uniform Evidence Acts should be amended to replace the words ‘a document recording a message that has been transmitted by electronic mail or by a fax, telegram, lettergram or telex’ with the words ‘an electronic communication’, as defined in s 5 of the Electronic Transactions Act 1999 (Cth).

6.58 In DP 69, the Commissions argued that a device-specific or method-specific response to modern and developing technology may turn out to be too restrictive in itself and a short-lived solution. As highlighted by the discussion of the technology, ways of communicating electronically are expanding and changing rapidly. The Commissions stated that a broad and flexible approach to this technology is needed.

6.59 In DP 69, the Commissions concluded that the term ‘electronic communication’ would embrace all modern electronic technologies, including telecommunications, as well as the more outmoded fax, telegram, lettergram and telex methods of communication.[77] None of the terms ‘electronic commerce’, ‘electronic data transfer’ or ‘electronic messaging’ would cover sufficiently the possible means of communicating electronically.[78] The Commissions also rejected the term ‘data message’, as defined in the UNCITRAL Model Law on Electronic Commerce, as being insufficiently broad and unable to encompass future technologies.[79]

6.60 The Commissions also noted in DP 69 that the view was expressed in submissions and consultations that the reference in s 71 to ‘electronic mail’ is too restrictive.[80]

Submissions to DP 69 and the Commissions’ conclusion

6.61 The Commissions’ proposal was unanimously supported by submissions to DP 69.[81] Accordingly, the Commissions recommend that s 71 be amended as set out in Recommendation 6–2 to expand the type of evidence to which the section applies. A draft provision is included in Appendix 1.

6.62 The Commissions also consider that it would be useful to produce an Explanatory Memorandum similar to that which accompanied the Electronic Transactions Bill 1999 (Cth),[82] noting that ‘electronic communication’, ‘communication’ and ‘information’ should all be interpreted broadly and explaining:

The use of the term ‘unguided’ is not intended to refer to the broadcasting of information, but instead means that the electronic magnetic energy is not restricted to a physical conduit, such as a cable or wire. … Information that is recorded, stored or retained in an electronic form but is not transmitted immediately after being created is intended to fall within the scope of an ‘electronic communication’.

This definition should be read in conjunction with the definition of ‘information’, which is defined to mean data, text, images or speech. However, as a limitation is applied on the use of speech the definition of electronic communication is in two parts. Paragraph (a) states that, in relation to information in the form of data, text or images, the information can be communicated by means of guided and/or unguided electromagnetic energy. Paragraph (b) provides that information in the form of speech must be communicated by means of guided and/or unguided electromagnetic energy and must be processed at its destination by an automated voice recognition system. This is intended to allow information in the form of speech to be included in the scope of the Bill only where the information is provided by a person in a form that is analogous to writing. ‘Automated voice recognition system’ is intended to include information systems that capture information provided by voice in a way that enables it to be recorded or reproduced in written form, whether by demonstrating that the operation of the computer program occurred as a result of a person’s voice activation of that program or in any other way. This provision is intended to maintain the existing distinction commonly made between oral communications and written communications. The intention is to prevent an electronic communication in the form of speech from satisfying a legal requirement for writing or production of information. For example, it is not intended to have the effect that a writing requirement can be satisfied by a mere telephone call, message left on an answering machine or message left on voicemail.

‘Information’ is defined to mean information that is in the form of data, text, images or speech. … These terms are not intended to be mutually exclusive and it is possible that information may be in more than one form. For example, information may be in the form of text in a paper document but is then transferred in to the form of data in an electronic document.[83]

Recommendation 6–2 Section 71 of the uniform Evidence Acts should be amended to replace the words ‘a document recording a message that has been transmitted by electronic mail or by a fax, telegram, lettergram or telex’ with the words ‘an electronic communication’, and to insert as s 71(2) a definition for ‘electronic communication’ identical to that in s 5 of the Electronic Transactions Act 1999 (Cth).

Presumptions facilitating proof of electronic communications

6.63 Sections 160–163 of the uniform Evidence Acts facilitate proof of postal articles, telexes, lettergrams, telegrams and letters sent by Commonwealth agencies. The sections apply presumptions relating to the sending (or transmission) and receiving of these communications.

6.64 The CDPP raises an issue in its submission not canvassed in DP 69.[84] It points out that there is no provision in the uniform Evidence Acts equivalent to ss 160–163 facilitating proof of electronic communications. Currently, the transmission and receipt of these must be strictly proved. The CDPP observes that investigative agencies devote considerable resources to proving strictly that a person sent or received an email. It submits that, ‘with the pervasiveness of this form of communication, a requirement that each be proved in a laborious way cannot continue to be warranted’.[85]

6.65 The Commissions see no reason why the presumptions relating to transmission and receipt of other forms of communication should not apply to electronic communications. The Commissions are confident that, had present-day electronic communications been as commonly in use at the time the Evidence Act 1995 (Cth) was drafted, a provision equivalent to s 161 (presumptions relating to telexes) applying to electronic communications would have been included. Accordingly, the Commissions recommend that the uniform Evidence Acts be amended to remedy this omission. The new section should be drafted to include presumptions as to the source and destination of the communication. A draft provision is included in Appendix 1.

Recommendation 6–3 The uniform Evidence Acts should be amended by the insertion of a new provision in terms equivalent to s 161 facilitating proof of electronic communications. The provision will provide for presumptions in relation to electronic communications and should include presumptions as to the source and destination of the communication.

[66] Evidence Act 1995 (Cth) s 182 gives s 71 a wider application in relation to Commonwealth records.

[67] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 4–3.

[68] EDI emerged in the early 1980s and gained some popularity in the late 1980s as a medium for electronic commerce. EDI is the exchange of standardised document forms between computer systems for business use. Companies who have set up similar applications can exchange information, such as trade orders, between their computers. EDI, as well as a Customs Interactive facility, available directly through the Internet can be used to access the Australian Customs Service’s Integrated Cargo System, a new integrated IT system that will replace existing reporting and processing procedures: Australian Customs Service, Submission E 24, 21 February 2005.

[69] Application-centric EDI is an update to traditional EDI that uses secure transmission methods to facilitate the exchange of information between secure applications, typically located at different premises (for example, vendor and customer). Deployment of such secured applications over their intranets and the Internet is faster, less costly, and more effective than traditional EDI.

[70] Instant messaging, using software programs such as ICQ, is gaining popularity. It is a technology that combines features of email with chat.

[71] C Heunemann, Consultation, 1 April 2005; C Heunemann, Consultation, 1 April 2005.

[72] First introduced by Apple Computer in 1993 as the Newton MessagePad, ‘PDA’ is short for personal digital assistant. It is a handheld device that combines computing, mobile phone, fax, Internet, networking and personal organiser features. Unlike portable computers, most PDAs began using a stylus rather than a keyboard for input. This means that they also incorporate handwriting recognition features. Some PDAs can also react to voice input by using voice recognition technologies. PDAs are also called palmtops, hand-held computers and pocket computers.

[73] C Heunemann, Consultation, 1 April 2005; C Heunemann, Consultation, 1 April 2005.

[74] The Explanatory Memorandum clarifies that ‘communications by means of guided electromagnetic energy is intended to include the use of cables and wires, for example optic fibre cables and telephone lines’: Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth).

[75] The Explanatory Memorandum also clarifies that ‘communications by means of unguided electromagnetic energy is intended to include the use of radio waves, visible light, microwaves, infrared signals and other energy in the electromagnetic spectrum’: Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth).

[76] The term PAN is also used to describe ad hoc, peer-to-peer networks.

[77] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [6.63].

[78] Ibid, [6.64].

[79] Ibid, [6.65].

[80] A Davidson, Submission E 7, 20 December 2004; Clayton Utz, Submission E 20, 17 February 2005; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Australian Customs Service, Submission E 24, 21 February 2005; Legal Services Commission of South Australia, Submission E 29, 22 February 2005; Australian Securities & Investments Commission, Submission E 33, 7 March 2005 NSW Young Lawyers Civil Litigation Committee, Submission E 34, 7 March 2005; Criminal Law Committee of the Law Society of South Australia, Submission E 35, 7 March 2005; Victorian Supreme Court Litigation Committee, Consultation, 18 March 2005.

[81] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; New South Wales Public Defenders, Submission E 89, 19 September 2005; Australian Federal Police, Submission E 92, 20 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Victoria Police, Submission E 111, 30 September 2005.

[82] Explanatory Memorandum, Electronic Transactions Bill 1999 (Cth).

[83] Ibid.

[84] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[85] Ibid.