The WayForward: the admissibility of ‘WayBack Machine’ evidence

What is the ‘Wayback Machine’

The Wayback Machine is an internet-based service available here, maintained by the Internet Archive which stores archived versions of historical web pages.

The Wayback Machine makes it possible to ‘surf’ billions of webpages stored in its web archive. Visitors to the website seeking to search an archived website can do so by the URL for the site. If the archive maintained by the Wayback Machine contains webpages for the nominated web address being searched, the user will be presented with a list of dates for that website held within the archive. The user can then select one of those dates for retrieval and the Wayback Machine will display the website at that date as contained within the archive. The user can then access that website and its webpages according to the tabs and links and protocols adopted on that website such that the user can then begin surfing on the archived version of the site.

It is now increasingly common in proceedings in Australia for parties to rely on historical website pages sourced from the Wayback Machine as evidence of what was shown on the particular website at a point in time relevant to the proceeding. In particular, the WayBack Machine has proved valuable in trade mark disputes.

However, the decisions of the Courts have put rules on use and admissibility and not anything taken from the Wayback Machine will be acceptable evidence.

Background – traditional rule in relation to evidence

Subject to exceptions, it is a basic principle of evidence that only direct evidence made in court will be admissible as evidence for the purposes of being used and relied on in Court to support a party’s case.  This is why affidavit evidence and cross-examination is so fundamental to the Court system.

In the past, attempts to have evidence obtained from the Wayback Machine admitted into evidence have failed. In short, this was because there was no evidence (i.e. a sworn or affirmed affidavit) which explained how the Wayback Machine worked and how web pages were obtained.  Simply tendering pages was not enough.

Pinnacle Runway Pty Ltd v Triangl Ltd (2019) 375 ALR 251 (Pinnacle Runway)

In Pinnacle Runway, the Court admitted into evidence webpages archived by and obtained from the Wayback Machine. This was because an employee of the Internet Archive, which maintains the Wayback Machine, gave evidence as to its operation. The Court distinguished this from earlier case law in which the Court concluded that historical versions of webpages sourced by WayBack Machine amounted to inadmissible hearsay because there was no admissible evidence before the Court as to the operation of the WayBack Machine.

The Court was also comfortable that the Wayback Machine operates in a manner which is automated and not reliant on human input or “made by a person” such that certain prohibitions in relation to hearsay was not applicable (namely, s. 59 of the Evidence Act).

This case opened the door and provided guidance to litigants seeking to use evidence obtained from the Wayback Machine and employees of the Internet Archive now commonly give evidence in Australia and elsewhere in this regard.

The Pinnacle Runway decision was affirmed in Enagic Co Ltd v Horizons (Asia) Pty Ltd (2021) 396 ALR 633 in which both parties to the proceedings relied on extracts of the WayBack Machine. In that case the Court said: “Both parties have adduced evidence obtained by use of an internet archive known as the Wayback Machine to demonstrate the content of various websites at various times. The Court has before it evidence as to how the internet archive operates…The Court may rely on the extracts from the websites as reliable representations of the textual content of web pages at the times of their capture…“.

But it is not always going to be considered reliable or admitted

However, of key interest to those involved in a trade mark dispute, in King Par LLC v Brosnan Golf Pty Ltd [2014] FCA 795 (King Parr) (and following cases including Pinnacle Runway, the Courts have found the Wayback Machine to be unreliable in the way the dates of certain images are recorded. In King Par the Court was not satisfied as to the accuracy of the dates of archived images attributed to them by the Wayback Machine.

This was because the HTML file on which a web page was based was archived separately from the images to which the HTML file were linked and as a result, images that appeared on a certain page may not have been archived as at the same date as the HTML file. The date will be the closest available date, not necessarily the same date. In lay terms, an image appearing on a web page archived from the Wayback Machine may not have been archived as of the same date as the webpage date recorded by the Wayback Machine.

This distinction will be highly relevant in cases relating to the use of images on a web page on  certain date and a trap for the uninitiated.

Key Takeaway

We expect evidence obtained from the Wayback Machine to be an increasing feature of Australian litigation.

However, litigants need to know the limitations of the Wayback Machine itself, as well as the requirements of the Courts in relation to putting historical versions of webpages into evidence.