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Thursday, July 13, 2017

While the US says yes to the Wayback Machine, Australia says: what is it?

By Elliott Burton, Lawyer

We're big fans of the Wayback Machine here at Scintilla, so you can imagine our excitement when we heard about the case Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 (Shape Shopfitters), where the Federal Court was directly asked whether Wayback Machine records constitute admissible evidence. So, is Shape Shopfitters Australia's Marten Transport, which confirmed that Wayback Machine is good evidence in the US? Are Australian courts ready to welcome Wayback Machine records with open arms?

Sadly, no.

First, some background.

The Wayback Machine is a service offered by the American non-profit organisation called the Internet Archive that allows users to browse archived records of websites. Unsurprisingly, the service has been used by lawyers looking to demonstrate representations that have been made, or records that have been made available, on websites over time. Using Wayback Machine evidence is particularly common in domain name disputes, which are not bound by as strict rules of evidence as court proceedings.

In Australia, the use of Wayback Machine archived records as evidence was brought into question by the 2008 Federal Court decision in E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 (E & J Gallo). In that case, Justice Flick stated that Wayback Machine's records tendered as evidence were inadmissible as  hearsay and were not business records under section 69 of the Evidence Act 1995 (Cth). It is notable that in making his decision, Justice Flick did not have the benefit of evidence from the Internet Archive itself to demonstrate what the Internet Archive did, and how records were generated.

Despite E & J Gallo, Wayback Machine evidence has been accepted by Australian courts in some instances uncritically, see for example Food Channel Network Pty Ltd v Television Food Network G P [2010] FCA 703 and Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81. However in those cases, the evidence was never challenged.

This takes us to Shape Shopfitters, which is the first case that we are aware of since E & J Gallo to directly challenge the admissibility of Wayback Machine evidence.

Justice Mortimor in Shape Shopfitters, applying E & J Gallo, questioned the reliability of Wayback Machine records. Her honour agreed with Justice Flick that those records were both hearsay and not business records. In particular, her honour emphasised that it was not clear 'who it was that recorded the information and how accurately that task was undertaken'. So once again, when the Court was asked to determine the admissibility of Wayback Machine records as evidence, the Court was left without critical information as to how those records are generated.

For true believers in the Wayback Machine, Shape Shopfitters is clearly a setback. However, given the circumstances of that decision, the issue is not yet settled. There is still every chance that Australian courts will one day follow the trail carved by their US counterparts. But that day is not today.



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