Evidentiary Requirements for Proving Internet Publications

The complainant filed suit for damages against the owner of an online stamp auctions website, claiming compensation for the moral damages and lost profits resulting from the publication of a libelous comment on the site.

Among other reasons, the court of first instance dismissed the complaint on the grounds that the plaintiff failed to demonstrate the publication of the libelous statement.

Thus, even if the plaintiff had produced notarized printouts of the relevant web page, the certification was made after the printing date. Also, the Judge accessed the site and failed to find the comment in question, which ultimately sealed the fate of the case.

The complainant challenged the decision but the National Court of Appeals in Commercial Matters upheld the ruling.

In so deciding, the Court of Appeals did not focus on the difference in the printing and certification dates. Instead, it gave special weight to the fact that the notary public did not indicate the internet address from which the copies were obtained.

Additionally, the Court of Appeals ruled that the plaintiff was negligent in examining the court appointed computer expert. Furthermore, the complainant merely questioned the expert on the details of the transactions completed through the website, but failed to inquire into the authenticity of the libelous publication or other elements that could have been useful to attribute the statement to the defendant.

This ruling is especially significant as it sets the standard for demonstrating the content of internet publications, in defining the computer expert’s testimony as “the appropriate means of proof” to that end.

However, this is not the only criteria followed by our courts on this specific issue. Indeed, the Federal Court of Appeals in Civil and Commercial Matters has repeatedly held that in the case of “…internet pages with the respective address printed at the bottom of each page so that they can be accessed by any user (…) there is no reason to question their authenticity” (Division I, F.Hoffman-La Roche AG v. SAF S.A., 07/09/00, among others).

Litigants should adjust their evidence to the standards required in each jurisdiction.