Can “hacked” documents be used in civil claims?
This is a fascinating topic and although we’re not involved in this case, nor in the legal arguments, we have been engaged on projects where similar situations have occurred. Our role on those cases is typically looking at the integrity and veracity of said “hacked” documents.
The article by David Butler from Fox Williams provides some insightful views based on this issue further to the recent Court of Appeal judgement in Ras Al Khaimah Investment Authority v Azima. Now, I won’t reiterate the background or facts of the case as David covers these very well in his article, but what I would like to highlight is perhaps the most interesting point in that it implies that evidence is admissible however it is obtained.
Given the vast (and growing amount) of data that is stored by businesses and individuals and the growing issue of hacking, I have to agree with David’s conclusion: “Hacking is a crime, yet you can commit that crime but still use the fruits of it to prove a civil claim...[and] in all but the most extreme case, the courts will remain disinterested in how the evidence came into a party’s control...[therefore] one has to question whether the court’s approach sends the right message.”
Is the law consistent in its treatment of hacking? Hacking is a crime, yet you can commit that crime but still use the fruits of it to prove a civil claim. In Hounga v Allen, a case about illegality,Lord Hughes noted that “the law must act consistently; it cannot give with one hand what it takes away with another, nor condone when facing right what is condemns when facing left.” Yet in all but the most extreme case, the courts will remain disinterested in how the evidence came into a party’s control. Given the very serious nature of the intrusion in a person’s private life and the harm that hacking can cause the victim, and the increasing prevalence of hacking and cybercrime more generally, one has to question whether the court’s approach sends the right message.