Re: Steve Marsden's WBM screenshot: The CEOP Home page for April 30, 2007 also refers to Missing Madeleine.

by Syn 28.06.15 22:28

Elça Craig wrote:
Nuala wrote:I would like to thank Dr Roberts for posting a screenshot of the page where it shows how many URLs have been captured for the CEOP
website. It's very interesting. The first thing I noticed when I went there, and I'm surprised no-one else looking at that page noticed
as well, because it's so blatently obvious, is how many times an archive/crawl date of 30 April 2007 appears. Masses of times in fact.

Page 1 starts with some other dates then 30 April 2007 follows, and because I can't be bothered to count them I'll exclude them for the
moment. Note that I have 100 URLs showing per page.

Page 2 all 30 April 2007
Page 3 all 30 April 2007 except for a couple of other dates appearing in the middle
Page 4 all 30 April 2007
Page 5 all 30 April 2007
Page 6 all 30 April 2007
Page 7 all 30 April 2007
Page 8 all 30 April 2007 except for a couple of other dates appearing at the bottom
Page 9 all 30 April 2007
Page 10 all 30 April 2007
Page 11 about half 30 April 2007 then moves on to June 2007
Page 12 other dates from 2006/07
Page 13 30 April 2007 starts again about three quarters of the way down
Page 14 all 30 April 2007
Page 15 about a quarter 30 April 2007 then moves on to July 2007
Page 16 continues with July 2007 then moves back to 30 April near the bottom
Page 17 all 30 April 2007
Page 18 all 30 April 2007
Page 19 all 30 April 2007
Page 20 all 30 April 2007
Page 21 all 30 April 2007
Page 22 all 30 April 2007
Page 23 some 30 April 2007 but mostly other dates
Page 24 30 April 2007 starts again about quarter of the way down
Page 25 all 30 April 2007
Page 26 all 30 April 2007
Page 27 all 30 April 2007
Page 28 all 30 April 2007
Page 29 all 30 April 2007
Page 30 about half 30 April 2007 then moves back to Sep 2006
Page 31 starts with Sep 2006 then returns to 30 April 2007 about half way down
Page 32 all 30 April 2007
Page 33 about half 30 April 2007
Page 34 all 30 April 2007
Page 35 all 30 April 2007

Losing the will to live at this point so haven't gone on in any detail. Perhaps someone knows a way of sorting by date to make it
easier, but anyway there are 22 pages of the ones I looked at showing a list of 100 URLS with the 30 April 2007 date (ignoring half pages, etc). Quick look on it goes back to 30 April 2007 on pages 79/80 but mostly other dates until the end on page 88.

So 22 x 100 = 2,200 times archiving is dated 30 April 2007. Now maths isn't my strong point so I'm going to be approximate, Wayback
says it has 8,780 URLS captured for CEOP. Going on those figures, and there are more occurences of 30 April than I included in that
equation, but to give an aproximate figure, since Wayback started crawling the CEOP website, it has dated approx ONE THIRD for
ONE DAY ALONE - 30th April 2007.

The 30 April 2007 date can't be trusted at all. It repeats again and again the same URLs over and over. Note that none of the URLs
for that date are accessible either, they all come up with an error.

As confirmed in writing by Wayback the 30 April 2007 date for the mccann.html page is a mistake, and anyone looking at the URL list
can see there is a problem with 30 April 2007, many many times in fact. So obviously the dates of the two Madeleine JPGs isn't 30 April
2007 either.

Thanks for this.

I don't understand the underlying source i.e. what you are looking at to say so many hits occurred. Is this CEOP for 30 April?

Anyhow - we have a gap on WM in captures between 12 Oct 2007 and early Feb 2008. Whereas Syn has shown there is a capture reflected on Screenshots.com. (There's 2, but I'm sure Syn knows that.)

Can you tell if this gap is site-wide across CEOP on WM? Can the date of the error be narrowed down further than 23 Oct 2007 to early Feb 2008?

Good catch by Nuala highlighting the fact that WB captured circa 3000 urls from the CEOP domain for 30/04/2007 out of 8780 they have captured in total since 2005. 3015/8780 all relating to 30/04/07!! If that doesn't convince naysayers that there is something amiss with the 30/04/07 captures, then nothing will.

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Digging around I found this which suggests 24th October as possibly being the real date for the erroneous index.asp 30/04/07 archive Elça
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by Nuala 28.06.15 22:30

@ NickE

CEOP could easily debunk and stop the allegations by showing us their Google Analytics 2007 stats for mccann.html

How do you know they even have Google analytics stats for 2007?

I didn't notice the coding for stats in the HTML.

by Guest 28.06.15 22:34

Richard Henshaw wrote:Quoting Elca Craig: I may be exceeding the forum guidelines, but at this point I have had enough from 'guests'.

[Other inappropriate comments by Elca Craig deleted by Mod]

"I may be exceeding the forum guidelines, but at this point I have had enough from 'guests'.

[Inappropriate comments about a fellow member - deleted by Mod]."

The original post and the Mod change is on p16.

I thought I might be overcooking it and the mods agreed. Hence the rest of my post was deleted. I have no problem with that.

by Syn 28.06.15 22:34

siobhan3443 wrote:@Elça Craig
the list displayed by nuala is the number of times the wbm indexed the ceop page. almost a third of the captures were filed under april 30. this is an extraordinary number

can you please link the screenshots pages
because there is a 'fake doing the rounds' - i hope it's not that one you are referring to

and yes i can prove to you it's fake

Are you talking about the 21 Nov 07 capture Siobhan?

I can assure you it is real and not fake you just have to move the scroller to find it in the captured screenshots. I did not just type in 27/11/2007. It existed on Wayback at some point but does not now for some reason. It is not a mere screenshot. Screenshots.com uses actual data from WB as it's source as explained here:

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by siobhan3443 28.06.15 22:42

@syn no, it's the 30 April screenshot I was referring to. Yours is legit.

but you've just shown to me at least something else (not particularly relevant?). I archived that page you link to on archive.is. I know because the way ceop is in the onscreen search bar. So that webscrapper and archive.is share their info.

by siobhan3443 28.06.15 22:45

I didn't enter the 21 Nov 07 capture. in case i confused anyone there. i archived the page the 21 nov capture was on

by Guest 28.06.15 22:47

Anonymous wrote:Elca Craig wrote: "I may be exceeding the forum guidelines, but at this point I have had enough from 'guests'."

[The rest of what Elca Craig wrote has already been deleted. Please do not repeat words that a Mod has deleted, many thanks. Also please, when quoting, use the 'QUOTE' button to make your posts clearer - Mod]

Off-topic post deleted - Mod.

by Guest 28.06.15 22:50

Nuala wrote:@ Elça Craig

If you go here, you can see the list of URLs:

[You must be registered and logged in to see this link.]

I don't know if that helps with your questions, it's the list of URLs captured, but you can see for yourself

Note that when I try that link above in preview on this forum the asterisk isn't clickable, just saying because that has to be there so perhaps copy and paste the link in your browser.

Thanks,

I'll take it from there.

by Guest 28.06.15 23:04

siobhan3443 wrote:Anyhow - we have a gap on WM in captures between 12 Oct 2007 and early Feb 2008. Whereas Syn has shown there is a capture reflected on Screenshots.com.

@ Elça Craig

- can you post the links to which you refer. There is an issue with some of the links from screenshots

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by Guest 28.06.15 23:08

siobhan3443 wrote:@Elça Craig
the list displayed by nuala is the number of times the wbm indexed the ceop page. almost a third of the captures were filed under april 30. this is an extraordinary number

can you please link the screenshots pages
because there is a 'fake doing the rounds' - i hope it's not that one you are referring to

and yes i can prove to you it's fake

Please link. I would love to see the pages, whether fake or not.

by Guest 28.06.15 23:13

Syn wrote:
Elça Craig wrote:
Nuala wrote:I would like to thank Dr Roberts for posting a screenshot of the page where it shows how many URLs have been captured for the CEOP
website. It's very interesting. The first thing I noticed when I went there, and I'm surprised no-one else looking at that page noticed
as well, because it's so blatently obvious, is how many times an archive/crawl date of 30 April 2007 appears. Masses of times in fact.

Page 1 starts with some other dates then 30 April 2007 follows, and because I can't be bothered to count them I'll exclude them for the
moment. Note that I have 100 URLs showing per page.

Page 2 all 30 April 2007
Page 3 all 30 April 2007 except for a couple of other dates appearing in the middle
Page 4 all 30 April 2007
Page 5 all 30 April 2007
Page 6 all 30 April 2007
Page 7 all 30 April 2007
Page 8 all 30 April 2007 except for a couple of other dates appearing at the bottom
Page 9 all 30 April 2007
Page 10 all 30 April 2007
Page 11 about half 30 April 2007 then moves on to June 2007
Page 12 other dates from 2006/07
Page 13 30 April 2007 starts again about three quarters of the way down
Page 14 all 30 April 2007
Page 15 about a quarter 30 April 2007 then moves on to July 2007
Page 16 continues with July 2007 then moves back to 30 April near the bottom
Page 17 all 30 April 2007
Page 18 all 30 April 2007
Page 19 all 30 April 2007
Page 20 all 30 April 2007
Page 21 all 30 April 2007
Page 22 all 30 April 2007
Page 23 some 30 April 2007 but mostly other dates
Page 24 30 April 2007 starts again about quarter of the way down
Page 25 all 30 April 2007
Page 26 all 30 April 2007
Page 27 all 30 April 2007
Page 28 all 30 April 2007
Page 29 all 30 April 2007
Page 30 about half 30 April 2007 then moves back to Sep 2006
Page 31 starts with Sep 2006 then returns to 30 April 2007 about half way down
Page 32 all 30 April 2007
Page 33 about half 30 April 2007
Page 34 all 30 April 2007
Page 35 all 30 April 2007

Losing the will to live at this point so haven't gone on in any detail. Perhaps someone knows a way of sorting by date to make it
easier, but anyway there are 22 pages of the ones I looked at showing a list of 100 URLS with the 30 April 2007 date (ignoring half pages, etc). Quick look on it goes back to 30 April 2007 on pages 79/80 but mostly other dates until the end on page 88.

So 22 x 100 = 2,200 times archiving is dated 30 April 2007. Now maths isn't my strong point so I'm going to be approximate, Wayback
says it has 8,780 URLS captured for CEOP. Going on those figures, and there are more occurences of 30 April than I included in that
equation, but to give an aproximate figure, since Wayback started crawling the CEOP website, it has dated approx ONE THIRD for
ONE DAY ALONE - 30th April 2007.

The 30 April 2007 date can't be trusted at all. It repeats again and again the same URLs over and over. Note that none of the URLs
for that date are accessible either, they all come up with an error.

As confirmed in writing by Wayback the 30 April 2007 date for the mccann.html page is a mistake, and anyone looking at the URL list
can see there is a problem with 30 April 2007, many many times in fact. So obviously the dates of the two Madeleine JPGs isn't 30 April
2007 either.

Thanks for this.

I don't understand the underlying source i.e. what you are looking at to say so many hits occurred. Is this CEOP for 30 April?

Anyhow - we have a gap on WM in captures between 12 Oct 2007 and early Feb 2008. Whereas Syn has shown there is a capture reflected on Screenshots.com. (There's 2, but I'm sure Syn knows that.)

Can you tell if this gap is site-wide across CEOP on WM? Can the date of the error be narrowed down further than 23 Oct 2007 to early Feb 2008?

Good catch by Nuala highlighting the fact that WB captured circa 3000 urls from the CEOP domain for 30/04/2007 out of 8780 they have captured in total since 2005. 3015/8780 all relating to 30/04/07!! If that doesn't convince naysayers that there is something amiss with the 30/04/07 captures, then nothing will.

[You must be registered and logged in to see this image.]

Digging around I found this which suggests 24th October as possibly being the real date for the erroneous index.asp 30/04/07 archive Elça
[You must be registered and logged in to see this image.]

It won't convince the naysayers, but it is tasty, isn't it?

by Syn 28.06.15 23:14

siobhan3443 wrote:@syn no, it's the 30 April screenshot I was referring to. Yours is legit.

but you've just shown to me at least something else (not particularly relevant?). I archived that page you link to on archive.is. I know because the way ceop is in the onscreen search bar. So that webscrapper and archive.is share their info.

Ahh okies thanks Siobhan :)

I think I know the fake screenshot you mean now. Looks like someone simply typed in this

[You must be registered and logged in to see this link.] and of course it just brought up the homepage for the current [You must be registered and logged in to see this link.] as it would do ... :)

by siobhan3443 28.06.15 23:26

@Elça Craig

thanks. those appear legit as i've said. They don't appear in the calendar, this is correct. i wonder if we'd find them in april 30 index?

i came across another entry for bringmadeleine home on wbm 28 june links nowhere, it appears wbm has a few errors i'll poke about a bit more.

by Verdi 28.06.15 23:46

Elça Craig wrote:
Verdi wrote:
Joss wrote:
HelenMeg wrote:The thread has been disrupted - there's no longer proper debate and discussion with a view to finding the truth. It has deliberately been turned into
a battle of egos. Thats says something in itself. In fact a remarkably similar process for disruption as used on the 'Last photo' debate.
Couldn't agree more.
Interesting however to note that a few voices of the 'banned' brigade came rushing back as guests to get stuck in. Also interesting to note that any questions raised by the non-tech fraternity (trying to make some sense of it all) are ignored - been this way before, you ask questions they can't answer so either ignore or try to blind you with science? Could be wrong but I always thought if you are an expert in any particular field you should be able to put yourself across in lay terms - how else can a novice ever learn a new subject?

I now await the stock 'you ignoramous, even a ten year old knows that' type response !

BTW: Another superb signature!

You have probably defined the recipe. A mix of banned guests who appear to wish to stir things up, complete with a dose of techies who find it difficult to explain things in the sort of English that non-techies understand.

If you wish to visit ShiningInLuz, I have taken the technical information from here and elsewhere, extracted the technical terms, and put it in plain and simple English that you can test things out for yourself. Not read for yourself but test for yourself.

And no, I am not telling people what the 'correct' view is. I have simply explained how any non-techie can check for themselves (IT'S SO EASY) and then make up their own minds.

(PS. It became clear that it was not a web crawler mistake days ago. Syn did that. Why o why we are still getting 'web crawlers don't lie' I can only put down to someone who claims expertise actually being behind the curve.)

I thank you, I've had a look at your gaff and appreciate the time you've taken to explain the intricacies in some sort of idiots guide. First look it's a lot to take in, dates being the most absorbing factor (probably why I was never any good at history) so I will have another read at a more sensible hour.

Surprise surprise, I actually located some of the pages you identified but lacked the competence to make any comment, anyway as already said, it seems the experts are more interested in point scoring than educating the uninformed. I also wondered why such a US based organization could/would be behind some mass conspiracy to pervert the course of justice. CEOP possibly but I can't go along with Wayback being a major conspirator in the case of Madeleine McCann's disappearance.

by Nuala 28.06.15 23:55

Something else I've just noticed, some of the URLs dated 30 Apr 2007 are for articles after that date.

For example /news_items/article_20070514_ceop.htm

That's a date in the URL put there by CEOP, not Wayback.

CEOP had stored news articles in a /news_items/ folder and referenced the articles with a date in the URL - article_20070514_ceop.htm

So Wayback has given a date of 30 Apr 2007 to a load of articles that didn't exist on that date.

Just like it did with mccann.html and the two JPGs of Madeleine.

Syn or Siobhan, could you check that out please?

by siobhan3443 29.06.15 0:20

12 Oct 2007 and early Feb 2008 re; more missing dates between these dates archived through wbm and then through archive.is but do not appear on wbm calender https

://archive. is/

www

. ceop. gov.
uk
6 feb 2008 https
: // archive. is/ 0cJyg
13 oct https: // archive. is/b eNNU
sorry about the links there's 3 there if someone could reconstruct. @ nuala, from a quick glace- yes i think this is also correct

by Joss 29.06.15 5:28

Just a question: Where is everyone agreeing or disputing all of this information going to go with it? Has anyone drawn it to OG/SY's attention yet? The PJ in Portugal don't appear interested in it from the info. i posted yesterday from I. McFadden, so the only other authorities that could do something about it is the U.K. investigation, but the PJ have jurisdiction on the case because the crime happened in Portugal. And other than that what else can anyone do about it?

by whodunnit 29.06.15 6:58

archive.is. FAQ

[size=54]Why does archive.is not obey robots.txt?[/size]
[size=54]Because it is not a free-walking crawler, it saves only one page acting as a direct agent of the human user. [/size]

[size=54]~~[/size]

by HKP 29.06.15 8:22

While it’s all very noble of the crew who are looking through the 30/4 captures etc. and coming up with a high percentage of 8779 urls seeming to have occurred on this very day a question. Lets just for one minute say that something is not right and the 30/04 captures are suspicious; it is not the fact that there are a (whatever) number of inconsistences that you find, it is the issue of ‘did the Wayback Machine crawl the Ceop site on 30/04’. If it did then the only pages that we need to prove were there or not are the ones relating to Madeleine i.e. mccann.html and madeleine jpegs 01 & 02 etc. Now considering that we are not on the inside of archive.com we will struggle to answer that question, the claims of this page or that page doesn’t look right are irrelevant, if it turned out that there were only a few captures that were correct (I’m not suggesting there were only a few) and these were indeed related to the McCann’s then that’s what we need to know.

by siobhan3443 29.06.15 10:14

all someone has to do now is to look at the info for the missing calendar files and see are the in the wbm index and under what date

by siobhan3443 29.06.15 10:20

just for reference i see it's being discussed elsewhere

archive.ie doesn't take it's info from archive.is. they are separate.

by siobhan3443 29.06.15 10:27

that should read archive.com not archive.ie above

by siobhan3443 29.06.15 10:29

that should read archive.com not archive.ie above

by Guest 999 29.06.15 10:30

If i were WBM, i would be very concerned about such errors.

According to them, their info/data is used on many court cases etc etc which clearly shows they are very accurate and reliable.

However...with errors such as this [if proved -Admin] happening seemingly so randomly and easily, I would think that any previous convictions based on supporting info from the company can now be deemed very unsafe.

I hope they have good lawyers!

by **Tony Bennett** 29.06.15 10:55

Guest 999 wrote:If i were WBM, i would be very concerned about such errors.

According to them, their info/data is used on many court cases etc etc which clearly shows they are very accurate and reliable.

However...with errors such as this [if proved - Admin] happening seemingly so randomly and easily, I would think that any previous convictions based on supporting info from the company can now be deemed very unsafe.

I hope they have good lawyers!

It is clear that Wayback Machine/archive.org is not error-free. The article below doesn't really take this debate much further, since we still need to know IF the CEOP 'capture' of a McCann.html page on 30 April is correct or false.

And, if false, why it was false.

Still no reply from Wayback to my e-mails of 17 and 23 June by the way.

The article below is written by a lawyer who has great knowledge of litigation involving Wayback - and is therefore well worth a read:

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

"Weighing up the Wayback Machine: an analysis of the admissibility of archived websites."

Weighing up the Wayback Machine

An analysis of the admissibility of archived websites

By Bryce Matthewson

The effect of the internet on our daily lives is undeniable. Recently we have even seen a court accepting service via Facebook. These changes raise new challenges for the legal system, one of which comes in the form of the Wayback Machine.

What is the Wayback Machine?

The Wayback Machine is a technology that preserves a comprehensive record of all websites, documents and other information contained on the internet. Because of the inherent fluidity of internet-based content, information that is available one minute can be gone the next. This can pose a serious problem for litigants.

In short, the Wayback Machine is a system that allows the public to view a website as it appeared on a previous date. It operates by scouring the internet in a methodical manner, making copies of all publicly accessible websites. These copies are then arranged by date, archived, and made accessible to the public.

Using the Wayback Machine is simple. After accessing the website ([You must be registered and logged in to see this link.]) you enter the URL of the website you are looking for, and out pops a list of dates on which the website was copied. You can then view the site as it appeared on those dates. No registration is required, and it is completely free.

Why is the Wayback Machine important to lawyers?

At first glance the Wayback Machine will probably seem like a nifty gadget, however, the Wayback Machine may have potential in a lawyer’s practice. Foreign law reports are dotted with examples of intellectual property lawyers having tried to use Wayback Machine printouts to show the use of a trade mark or prior disclosure of a patented invention. Similarly, it could be essential in proving copyright infringement, defamation, privacy infringement, unlawful competition, comparative advertising, etcetera.

But not all that glistens is gold and before one launches a case based on a Wayback Machine printout one must consider the weight of that evidence.

The Wayback Machine as evidence

Objection M’Lord! That’s hearsay! The obvious objection is that evidence obtained using the Wayback Machine is hearsay and accordingly inadmissible, unless the contrary is proven.

Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 (the EAA) defines ‘hearsay evidence’ as ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’.

At first sight, Wayback Machine printouts fall squarely within that definition. Internet Archive (the company that operates the Wayback Machine) recognises this and offers a standard affidavit that provides that the printouts ‘are true and accurate copies of printouts of Internet Archive’s records’. But we all know that that is not the same as saying they are accurate.

One might be inclined to subpoena an expert from Internet Archive to present the evidence, but this carries with it the inherent risks of using subpoenaed witnesses. Internet Archive expressly asks on its website that users do not resort to this course because of the strain it will place on its resources.

Despite not having gained traction in South Africa, the Wayback Machine has been used extensively in other jurisdictions where the courts have had to grapple with these issues.

In the first such case, EchoStar sought to introduce printouts of Telewizja Polska’s website obtained using the Wayback Machine (Telewizja Polska USA Inc v Echostar Satellite No. 02 C 3293, [url=http://www.saflii.org/cgi-bin/LawCite?cit=65 Fed R Evid Serv 673]65 Fed. R. Evid. Serv. 673[/url] (N.D. Ill. 14-10-2004)). EchoStar relied on an affidavit by Molly Davis, the administrative director of the Internet Archive. In the affidavit Davis attested that the printouts were ‘true and accurate copies of printouts of Internet Archive’s records’. Polska launched an in limine motion to supress the evidence on the basis that it was hearsay and was not authenticated.

Although Polska failed in the preliminary stage, the trial judge found that the affidavit from Internet Archive contained both hearsay and inconclusive supporting statements, and the printouts were not self-authenticating. (Almost all articles cite only the decision of the magistrate and ignore the overruling decision of the district court. The district court decision, which was given during the trial is confirmed in CA Levitt & ME Rosch, Find Info Like a Pro: Mining the Internet’s Publicly Available Resources for Investigative Research, (American Bar Association 2007) vol 1 at 195). Accordingly, the website printouts were inadmissible.

Since that decision there have been a number of further decisions, but not with any level of consistency.

In the later decision of St. Luke’s Cataract & Laser Institute P.A. v Sanderson, M.D., LLC. (No. 06-CV-223, 2006 WL 1320242 (M.D. Fla. 12-5-2006)) the court was faced with a similar issue. The plaintiff in the St Luke’s case did not produce an affidavit from Internet Archive, but simply relied on Davis’ affidavit from the Telewizja case. The judge ruled that the evidence was not admissible but noted that, if the plaintiff had produced an affidavit by ‘a representative of Internet Archive with personal knowledge of its contents, verifying that the printouts … are true and accurate copies of Internet Archive’s records’, the evidence may have been admissible.

However, two district courts in the Second Circuit have taken a different view by focusing on the authenticity of the original rather than the copy. In the matter of Novak v Tucows Inc (no 06-CV-1909, 2007 U.S. Dist. LEXIS 21269 (E.D.N.Y. Mar. 26, 2007)), Novak sought to admit several Wayback Machine printouts. In doing so he relied on his own affidavit in which he attested to having obtained them using the Wayback Machine. The court ruled that the pages were hearsay, and that Novak could not authenticate them because he lacked the personal knowledge to prove that the printouts were a true reflection of the original website (ie, not just that they were a true reflection of Wayback Machine’s records).

The approach in the Novak case was thereafter followed by another United States (US) district court in the matter of Chamilia, LLC v Pandora Jewelry, LLC. [url=http://www.saflii.org/cgi-bin/LawCite?cit=85 USPQ2d 1169](85 U.S.P.Q.2d 1169[/url] (S.D.N.Y. 2007)) and has been subsequently affirmed by the Court of Appeals for the Second Circuit (Novak v Tucows Inc no 07-2211-cv, 2009 U.S. App. LEXIS 9786, at *6 (2d Cir. 6-5- 2009)).

Judicial attention has not been limited to the US. The Canadian courts have found in criminal matters (R v Ballendine 2009 BCSC 1938), civil matters (ITV Technologies Inc v WIC Television Ltd [url=http://www.saflii.org/cgi-bin/LawCite?cit=2003 FC 1056]2003 FC 1056[/url] (CanLII)), trade mark proceedings (eMusic.com Inc (Re) 2011 TMOB 34 (CanLII) and St. Joseph Media Inc v Starwood Hotels & Resorts Worldwide Inc 2010 TMOB 188 (CanLII)) and patent proceedings (Re U-Haul International Inc (2010) 82 C.P.R. (4th) 279) that Wayback Machine printouts can be admissible.

By contrast, the Australian courts in E & J Gallo Winery v. Lion Nathan Australia (Pty) Ltd [2008] FCA 934 found that Wayback Machine printouts were inherently unreliable and accordingly not admissible (although this decision was subsequently overturned on appeal, the appeal was decided on a different issue).

I find the reasoning of the court in the Novak case to be the most convincing. Although the court in the St. Luke’s case suggested that the evidence may be admissible if introduced with an affidavit from an employee of Internet Archive, in my view the evidence would still be hearsay. As suggested in the Novak case the true deponent to the affidavit should be the webmaster (or other such similar person) of the original website. The question that should rather be asked is whether the printouts should nevertheless be admissible.

In terms of the EAA, hearsay evidence can be admitted by agreement between the parties, or if the court is of the view that such evidence should be admitted in the interests of justice, having regard to the following –

• the nature of the proceedings;
• the nature of the evidence;
• the purpose for which the evidence is tendered;
• the probative value of the evidence;
• the reason why the evidence is not given by the person on whose credibility the probative value of such evidence depends;
• any prejudice to a party that the admission of such evidence might entail; and
• any other factor that should, in the opinion of the court, be taken into account.

In the absence of a factual matrix it is impossible to consider all of these factors. However, if one considers those factors that can be considered in a factual vacuum, one begins to paint a picture favouring the admission of Wayback Machine printouts.

First, having regard to the nature of the evidence, which is an issue primarily concerned with the reliability of the evidence, one must favour the admission of the evidence as a computer printout, ascertained in the manner in which the Wayback Machine works, is inherently reliable.

If one then considers why the evidence is not being given by the primary source, a strong argument can be made in favour of admitting the evidence. The primary source would ordinarily be the webmaster, who in most cases will be the webmaster for many websites, and who will in all likelihood not recall what was posted on a website, what could be, years ago. Furthermore, this individual may be contracted to one of the parties and accordingly will have an interest in the matter. For those reasons alone this individual’s evidence would have to be considered with caution and accordingly Wayback Machine printouts should be favoured.

The last factor is the catch all and in this regard issues regarding the underlying purpose of the rules relating to hearsay should be taken into account. First, it is trite that the hearsay rule is justified by the best evidence rule. In these circumstances, because of the above-mentioned concerns regarding the value of the webmaster’s evidence, the best evidence is the Wayback Machine printouts (see also DR Eltgroth ‘Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence’ Fordham Law Review (2009) 78 at 181 for a full discussion on this issue). Secondly, the hearsay rule is aimed at ensuring that jurors will not be influenced by hearsay evidence. This does not apply in the South African context where judges are able to consider the appropriate probative weight with which to consider hearsay statements.

A further consideration is the Electronic Communications and Transactions Act 25 of 2002 (ECTA). Section 15 of ECTA provides that the rules of evidence must not be used to deny the admissibility of a data message on the grounds that it is not in its original form if it is the best evidence that the person adducing it could reasonably be expected to obtain. Section 21 of the ECTA defines a data message as data generated, sent, received or stored by electronic means and includes a stored record, which clearly includes a Wayback Machine printout.

As discussed above, the inherent difficulties in obtaining the primary evidence would in ordinary circumstances render Wayback Machine printouts the best evidence, and accordingly, in terms of s 15, it should not be refused. This proposition is consistent with the proposed reading of the EAA suggest above.

Section 15 of ECTA goes on to provide that a data message should be given due evidential weight, having regard to –

• the reliability of the manner in which the data message was generated, stored or communicated;
• the reliability of the manner in which the integrity of the data message was maintained;
• the manner in which its originator was identified; and
• any other relevant factor.

The first three factors are dealt with briefly in the standard affidavit that Internet Archive will provide on request. Should these issues be challenged, it may be necessary to introduce expert evidence. However, having regard to the approach of foreign courts, it seems that the manner of collection, storage and reliability of the message is generally considered reliable, and accordingly the printout should be considered with a high degree of evidentiary weight.

As regards the catch-all provision, it is difficult to envisage what else could be considered relevant. It is possible that issues similar to those considered in the hearsay provision discussed above could also be considered, such as the potential prejudice, and the purpose of the evidence. In my opinion, the court, in properly exercising its discretion in terms of s 15 of ECTA, should, unless satisfactory evidence is produced to dispute the reliability of the printouts, admit the printouts and consider them with a high degree of evidentiary weight.

Conclusion

The impact of the internet on legal practice is becoming increasingly apparent. Attorneys must consider whether any useful evidence (for their client or their opponent) could be obtained using the Wayback Machine.

One should also be acutely aware that the admission of the printouts may be challenged and should prepare accordingly.

That being said, I submit that unless the objector can produce convincing evidence disputing the reliability of Wayback Machine printouts, the courts should admit them, and consider them of a high probative value.

Bryce Matthewson BSc LLM (Wits) is a candidate attorney at Spoor & Fisher in Pretoria.

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Steve Marsden's WBM screenshot: The CEOP Home page for April 30, 2007 also refers to Missing Madeleine.