Online Bailiff report by Attorney Cahen 06-September- 2007
Growing numbers of Internet related disputes no longer surprise anyone. The move has been made. Only 10 years ago, the judicial system was still considering plaintiffs as UFO’s (aliens), or at best "eccentrics", today the matter is taken very seriously.
The abundance of often contradictory rulings of the judges regarding Internet use gives a favorable ground to all speculations and expectations of the common man in his electronic life.
There are more legislation/Laws every day. Just to mention the latest, in the State of NY, a law was passed last August regarding the reservation/ booking ? of a Domain name, see Article " When NY makes its own rules".
One thing remains the same, all procedures, whatever they may be, most frequently begin with a bailiff’s report. This is a crucial subject that attorney MIC, specialized in Information Technologies Rights, Communication and Computer Technology shares with us.
Sam Syamak Bavafa By Domainews.fr / Domaine.info
The Internet is a unmaterialized environment which has caused new problems in matters of Administering of evidence both technically and legally.
On a technical point of view :
The circulating information is continuously available all over the world. This can be an advantage for the bailiff as he is able to investigate thoroughly and copy the disputed information but yet requires to comply with some technical requirements.
The Judges have repeatedly accepted the consistency of these reports without a previous specific entitlement of jurisdiction from a judge, as there is no entry in homes. Actually, Paris Court of Appeal stated in October 25, 2006 that these reports only allow the bailiff to capture screen pages and not copy or "vacuum" a website risking committing a counterfeit description.
Nevertheless, the same court denied on November 17, 2006 the validity of a bailiff’s report because it considered it was a screen capture. In the dispute between Net Ultra and AOL France, IP address of the material used in the report was not mentioned, cookies had been deleted and the cache memory was not emptied at the time of the report. Therefore, there was no certainty that these pages were actually online at the time of the report. This did not make the Bailiff report nul and void but lost its sure value. Likewise, on February 7, 2007, Mulhouse Court of First Instance stated the lack of precision in the making of the report results in the dismissal of the Company accused of forgery.
This brings us to the conclusion that in order for a report to be considered valid, the equipment used in that report must be as "neutral" as possible, meaning it mustn’t interfere with the viewing of the website as it was at the time of the report. For that, it is essential that :
The equipment used by the Bailiff for his report is identified to the same IP address to make it possible to compare it with the connections information supplied by the host of the disputed website
That all cookies be deleted from the computer in order not to alter the bailiff’s navigation on that site
That the cache memory has been emptied to ensure the Bailiff the most current viewing of the site, which is necessary for the date and time stamp of the report.
These precautions are not difficult to apply but need to be if we want these reports to be valid in the judges eyes.
On a legal point of view :
These types of reports can be questioned on their loyalty in their proof. Judges tightly make sure that one party does not take advantage of the surprise, impropriety and fraud and this, on a the basis of adversarial principle. Meanwhile, when a Bailiff enters the premises of a company, he does it as any other would without identifying himself in any special manner. If he did, the surprise effect would disappear and the site administrator would be able to take out all disputed pages, making it impossible to produce any evidence...
It is really important to find the right balance between the surprise effect and the loyalty of the evidence. It is possible that an email sent right after the report describing its modalities and content be enough guarantee to its truthfulness, if indeed the owner the site knows what appears online at all times. That way he is not surprised by the content of the report and has enough time to prepare his defense as he would in a classic case.
Maître Murielle-Isabelle Cahen AVOCAT ONLINE