Electronic Records in Evidence: Section 63 and the Certificate

In one line

Every device in Module III produces an electronic record, and section 63 is the gate all of them pass through.

What section 63(1) does

Any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory, produced by a computer or any communication device, or otherwise stored, recorded or copied in any electronic form, is called the computer output, and it shall be deemed to be also a document if the conditions of the section are satisfied, and shall be admissible without further proof or production of the original as evidence of any contents of the original or of any fact stated in it of which direct evidence would be admissible.

That last phrase is the point of the whole section. It removes the need to produce the original device or server. Without it, proving a bank statement would require producing the bank's computer.

The four conditions in section 63(2)

(a) Regular use. The output was produced by the computer or communication device during a period over which it was used regularly to create, store or process information for the purposes of an activity regularly carried on over that period by the person having lawful control over its use.

(b) Regular feeding. During that period, information of the kind contained in the record, or from which it is derived, was regularly fed in in the ordinary course of those activities.

(c) Proper operation. Throughout the material part of the period the device was operating properly; or if it was not, the malfunction or being out of operation was not such as to affect the record or the accuracy of its contents.

(d) Derivation. The information reproduces or is derived from information fed in in the ordinary course of those activities.

Section 63(3): many machines counted as one

Where the function of creating, storing or processing was performed over the period by one or more computers or communication devices, whether in standalone mode, on a computer system, on a computer network, on a computer resource enabling information creation or providing processing and storage, or through an intermediary, all of them are treated as a single computer or communication device.

This clause was written for the cloud. Under the old section 65B it was arguable that a record assembled across many servers had no single "computer" to certify. Clause (e), "through an intermediary", closes that argument, and it is the most useful thing to say about how section 63 differs from what came before.

Section 63(4): the certificate

A certificate must be submitted along with the electronic record at each instance where it is being submitted for admission, and must do any of the following: