What went wrong?
Authors:
Mr Shreyas Mehrotra- Head of Dispute Resolution
Ms Shivangi Bajpai- Associate, Dispute Resolution
Reliance on online sources by lawyers and the judiciary has become a more frequent pattern in the last few years as the internet has become an important part of scholarship in the legal profession. When lawyers rely on internet data sources, they are obligated under Section 65B of the Indian Evidence Act 1872 to produce a certificate establishing that the information being relied upon from an electronic source can be traced back to its originator. Such a mandate under Section 65A keeps checks and balances on lawyers to ensure that the information obtained electronically is authentic in nature. However, when it comes to the judiciary, the judges are not bound by the obligation under Section 65A of the Indian Evidence Act 1872 which gives them a much wider pool of information to rely upon for their judgements and opinions. In doing so, judges have been often seen to cite internet sources like online blogs and articles in their judgements. As a matter of fact, it was in 2009 that a court in India relied on a blog article in its judgement in the case of M/S.TVS Motor Company Limited vs M/S. Bajaj Auto Limited.[1]
Reliance on online sources is inevitable when online repositories serve as important sources of knowledge and academic scholarship. However, not all online sources are authentic or can be verified which makes such information susceptible to inaccuracies. In fact, the Supreme Court, in a recent judgement Hewlett Packard India Sales vs Commissioner of Customs (I) Nhava[2], cautioned the authorities from citing Wikipedia as a source of law in their judgments and opinions. In the present case, the Commissioner of Customs (Appeals) relied on Wikipedia for the definition of ‘Automatic Data Processing Machines’ for the purpose of classification under the Central Excise Tariff Act, 1985. The content on Wikipedia is open to the public to edit which makes the information from Wikipedia’s website unreliable. The Supreme Court went on to observe that:
“These sources, despite being a treasure trove of knowledge, are based on a crowdsourced and user generated editing model that is not completely dependable in terms of academic veracity and can promote misleading information.”
In Commissioner of Customs, Bangalore v Acer India (P) Ltd.[3], the Supreme Court observed that “Wikipedia is an online encyclopedia and information can be entered therein by any person and as such, it may not be authentic.”
It is thus pertinent to note that the Supreme Court has time and again cautioned the courts against the use of data from crowd-sourced websites in judgements and opinions while also acknowledging the utility of these sources. The judgement of the Supreme Court is significant in view of the increasing number of websites proliferating fake and misleading news. Besides being inaccurate, the contents from such unauthentic sources can also be malafide and harm the parties irreparably.
It is imperative to understand the fact that the Supreme Court has held that the courts should be careful before deciding to cite content from a website. In order to act on the Apex court’s decision, courts across the country can verify the authors of the content to ensure the authenticity and test the veracity of the source of any information. In this fast-paced world completely relying on the internet for almost every work, it is crucial that any internet content which is being used in a court of law should have substance in it and is not incorrect. A few of the steps that may be adopted by authorities to reduce the chances of relying on wrong or misleading information are verifying the author of any such content, making a list of reliable and citable internet sources such as news websites, information-blog posts websites, Q&As websites or any other as and when required. The authorities may also avoid contents from websites that are open to be edited by public at large or is crowd-funded. The before mentioned points however are suggestive in nature that may help in reducing the chances of misleading information being cited in any legal proceeding.
We should not forget that in the 21st century, Data is the new oil. It should be used judiciously and consciously.
[1] Soumya Shankar, Malathi Nayak, Indian court uses blog reference to solve TVS-Bajaj patent issue, Live Mint, See < https://www.livemint.com/Industry/YfBnnhqMJOQiR5zfBGc7IJ/Indian-court-uses-blog-reference-to-solve-TVSBajaj-patent-i.html> Last Accessed on 22.01.2023, 2009 (40) PTC 689 (Mad) [2]2023 LiveLaw (SC) 43 [3](2008) 1 SCC 382
Disclaimer
The note is prepared for knowledge dissemination and does not constitute legal, financial or commercial advice. AK & Partners or its associates are not responsible for any action taken based on its contents.
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