Using screenshots from The Wayback Machine in court proceedings

Key takeaways

• Recent first instance decisions have taken fundamentally different approaches to the admissibility of screenshots from The Wayback Machine in court proceedings.
• The courts have been increasingly accommodating of the use of this technology. A key factor underlying this more receptive attitude is parties providing to the courts clear evidence on how The Wayback Machine operates.
• A recent decision suggests that ‘judicial notice’ may be taken of how The Wayback Machine operates.
• Until further certainty is provided by an intermediate appellate court, practitioners should continue to adopt a prudent approach by:

• providing evidence as to the operation of The Wayback Machine;
• bringing to the court’s attention the relevant case law that articulates the reasons for the different approaches; and
• relying on the relevant exceptions in the Uniform Evidence Acts (in those jurisdiction that have that legislation) or under similar legislation or the common law (in those jurisdictions that do not).

What is The Wayback Machine?

The Wayback Machine is a free service provided by not-for-profit entity Internet Archive which was launched in 1996. It contains at least 150 billion screenshots of websites taken at different points in time.¹

To view the screenshots that have been taken of a particular webpage, a user simply enters the URL of that webpage into the search function found at https://archive.org.

1. Screenshots from The Wayback Machine are hearsay

One approach that has been taken is to rule that screenshots are hearsay and therefore inadmissible. Under this approach screenshots may only be adduced for the purpose of proving what The Wayback Machine showed at the time the screenshots were taken and not for the purpose of proving the actual content or truth of the content of a particular webpage. This approach practically defeats the utility of using screenshots from The Wayback Machine.

In Voxson, the applicant company sought to adduce evidence of the historical state of webpages which had been maintained by the respondent telecommunications companies over a range of dates in late 2012.² Screenshots from The Wayback Machine of those webpages were annexed to a solicitor’s affidavit. The applicant sought to rely on the screenshots to prove both the content and the truth of the contents of particular webpages created and maintained by the respondents.³

The Federal Court of Australia decided that, by making the screenshots available on its website, the operator of The Wayback Machine was making a representation that it copied the webpage into its archive and recorded the date on which it did so, and that the webpage which appears in its archive is the webpage which existed on that date. As the applicant relied on the screenshots to prove both what was represented by the respondents and the truth of what was represented, the Court ruled that such evidence was ‘hearsay’ and therefore inadmissible.⁴

The Court also decided that no exception to the hearsay rule applied. Relevantly, the Court held that the ‘business records’ rule under section 69 of the Evidence Act 1995 (Cth) did not apply as the webpages were not ‘business records’ for the purposes of section 69.

Significantly, there was no evidence before the Court addressing whether the webpages formed part of the records of the business conducted by the operator of The Wayback Machine, or the manner in which the screenshots were recorded or generated.⁵

On the latter point, the more recent decision of JWR Productions, citing multiple decisions (including Voxson), said that (our emphasis):⁶

"The question is the use to which the screenshots can be put. They are evidence of what the Wayback Machine showed at the time the screenshots were taken. Absent some explanation as to the operation of the Wayback Machine website and how its data is collected and held, they are not evidence of what [the respondent’s website] showed at the times nominated by [the second appellant]..."

The first two sentences of the above passage confirm the ‘hearsay’ approach taken in Voxson. That is, screenshots from The Wayback Machine can only be used to prove the content of The Wayback Machine and not what a particular website or webpages contained. However, the decision indicates that evidence regarding The Wayback Machine’s operation can be relevant to determining whether to admit screenshots into evidence (at least for proving the content of a particular webpage but not necessarily the truth of the content). That point leads us to consider a second approach that has been taken to address the admissibility of these screenshots.

2. Hearsay rule waived and use of the screenshots limited

The second approach is to acknowledge that screenshots are hearsay but to dispense with the hearsay rule and admit the screenshots as evidence for a limited purpose.

In Dyno Nobel⁷, the Federal Court considered that the relevant screenshots were hearsay evidence but exercised its discretion under section 190(3) of the Evidence Act 1995 (Cth) to dispense with the application of the hearsay rule.

In that case, as part of an action seeking to revoke an Australian patent held by the respondent over blasting methods, the applicant sought to adduce screenshots from The Wayback Machine of a particular website, which displayed technical and promotional material about products promoted by the respondent. The screenshots of the webpages were annexed to an affidavit by Christopher Butler – the office manager at the Internet Archive. Mr Butler’s affidavit sought to explain the background to The Wayback Machine,⁸ how it is used by internet users,⁹ and the process by which the data was compiled.¹⁰

The applicant relied on the screenshots to prove the content of the respondent’s website on the particular dates of the screenshots.¹¹ When exercising its discretion under section 190(3), the Court placed significant weight on Mr Butler’s evidence regarding the operation and process of The Wayback Machine and accepted that the screenshots:¹²

• were likely to be a “reliable indication” of the content of the relevant website at different points of time; and
• were sufficiently relevant and probative evidence.

The Court then admitted The Wayback Machine screenshots into evidence subject to a limitation pursuant to section 136 of the Evidence Act 1995 (Cth) that they could only be used for the purpose of proving the content of the webpages on a particular date, but not the truth of the content.¹³

The difference between this approach and the first approach (the ‘hearsay’ approach from Voxson) is the use of evidence to explain how The Wayback Machine operates. In Dyno Nobel, that evidence was sufficient for the Court to exercise its discretion to admit the screenshots into evidence for the limited purpose of proving the content (but not the truth of the content) of the webpages.

3. Screenshots from The Wayback Machine are not hearsay

A third approach that has been taken is to rule that the hearsay rule does not apply to screenshots from The Wayback Machine.

In Pinnacle Runway, for the purposes of defending the claim for trade mark infringement, the respondent sought to adduce screenshots from The Wayback Machine of websites selling women’s swimwear in Australia between 2012 and 2016.¹⁴ The screenshots were annexed to a solicitor’s affidavit.¹⁵ Christopher Butler of the Internet Archive also gave affidavit evidence, deposing to the operation of The Wayback Machine.¹⁶ Mr Butler was also cross-examined.

The respondent relied upon the screenshots to establish its assertion that, over the relevant period, consumers in Australia were accustomed to seeing women’s names used as ‘style names’ in relation to women’s fashion. That is, the respondent sought to admit the screenshots to prove the truth of their contents.

In contrast to the decisions in Voxson and Dyno Nobel, the Federal Court considered whether the screenshots were hearsay for the purpose of section 59 of the Evidence Act 1995 (Cth). Relying extensively on Mr Butler’s evidence, the Court concluded that section 59 could not apply as it is concerned with representations “made by a person”.¹⁷ As Mr Butler’s evidence demonstrated, The Wayback Machine compiled its archived data through computer-generated processes which do not involve human input.¹⁸

The Court also concluded that the use of the screenshots should not be limited under section 136 of the Evidence Act 1995 (Cth). Referring to the decision in Dyno Nobel, the Court said that the screenshots were likely to be a “reliable indication of the content of the relevant websites at different points in time.”¹⁹ The Court went on to say that, having regarding to Mr Butler’s evidence and the unremarkable nature of the screenshots, it was “reasonably open to find that the screenshots are copies of webpages as they existed on the dates represented.”²⁰

The third approach is therefore fundamentally different to the first and second approaches considered above.

As the Court noted in Pinnacle Runway, the evidence of Mr Butler regarding The Wayback Machine’s operation had been given on at least 25 to 30 prior occasions.²¹ It seems that the affidavit evidence that Mr Butler gave in Pinnacle Runway adopted a standard form, which can be viewed on the Internet Archive’s website (although, that standard affidavit has since been updated).²²

However, it is worth noting that decisions such as JWR Productions and Legge,²³ which were decided after Pinnacle Runway, did not cite Pinnacle Runway and instead cited the decisions in Voxson and Dyno Nobel when considering how screenshots should be addressed from an evidentiary perspective. This raises a question over the authority of Pinnacle Runway on this issue.

4. Judicial notice of how The Wayback Machine operates

In Home Grown Brands,²⁴ the Federal Circuit Court considered whether to admit screenshots from The Wayback Machine into evidence on the basis that they were “authentic” documents for the purposes of section 57(1) of the Evidence Act 1995 (Cth). That section says, relevantly (our emphasis):

(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant:

(a) if it is reasonably open to make that finding…

In deciding that the screenshots were “authentic” documents (that is, they were screenshots of particular websites as they existed at particular times), the Court had regard to the evidence given by Mr Butler in Pinnacle Runway about The Wayback Machine’s operation. While that evidence was not before the Court in Home Grown Brands, the Court determined that such evidence was comprised of knowledge not reasonably open to question.²⁵ That is, judicial notice may be taken with respect to the operation of The Wayback Machine under section 144(1) of the Evidence Act 1995 (Cth).

A determinative factor in the Court’s reasoning was the presence of information which appeared on the screenshots obtained from The Wayback Machine which illustrated the manner in which webpages were archived, including a URL (being the URL of the archived webpage) and the range of dates on which the webpage was archived by The Wayback Machine.²⁶

Lastly, the Court also affirmed the decision in Pinnacle Runway that screenshots obtained from The Wayback Machine are not caught by the hearsay rule in section 59 of the Evidence Act 1995 (Cth).²⁷

The approach of the Court in Home Grown Brands (the fourth approach) is similar to that in Pinnacle Runway (the third approach). While evidence of The Wayback Machine’s operation was integral to the decision in Pinnacle Runway, Home Grown Brands suggests that how The Wayback Machine operates has become a matter of common knowledge. If that is the principle of Home Grown Brands, then there may be no need to lead evidence explaining how The Wayback Machine operates to establish the admissibility of its screenshots.

But there are two matters to keep in mind. First, Home Grown Brands is a decision of the Federal Circuit Court and the decision is of limited precedential value.²⁸ Second, and as a corollary of the first point, it would be prudent to provide direct evidence in support of the operation of The Wayback Machine, rather than rely on a decision of the Federal Circuit Court, given the different approaches taken by the superior courts.

Conclusion

Recent decisions demonstrate differing approaches to whether screenshots obtained from The Wayback Machine are admissible evidence and, if they are, the use to which they can be put. Over the past several years, the courts have adopted increasingly favourable approaches to screenshots from The Wayback Machine being admissible.

Given the diversity of reasoning in the decisions, until an intermediate appellate court or the High Court of Australia provides guidance on the issue, a prudent approach should be taken. That approach includes providing evidence as to the operation of The Wayback Machine (such as through Mr Christopher Butler), bringing to the court’s attention the relevant case law, and seeking to rely on the relevant exceptions in the Uniform Evidence Acts (in those jurisdictions that have that legislation) or under similar legislation or the common law (in those jurisdictions that do not).