High Court Rejects Admissibility of Altered Video Evidence, Clarifying that Authenticity and Integrity of Electronic Records Must Be Strictly Proven

Waboga David
Aug 31
3 min read

Introduction

Evidence law has since transformed with the advancement of technology, particularly the increasing reliance on video recordings, audio tapes, and other electronic records in litigation. Courts today are frequently called upon to evaluate such evidence, given its growing use in disputes ranging from land and commercial transactions to criminal prosecutions. However, the admissibility and authenticity of electronic evidence remain central concerns.

Under Evidence law in Uganda, specifically the Electronic Transactions Act, admissibility depends not only on the relevance of the material but also on whether the integrity and authenticity of the electronic record can be demonstrated. Courts require assurance that the evidence presented has not been tampered with, altered, or otherwise compromised in its transmission, storage, or presentation.

This places a heightened burden on the party seeking to rely on such evidence to establish its trustworthiness, often through producing the original device or demonstrating a clear chain of custody.

In the recent case of Bismilla Trading Limited v Falcon Estates Limited & Others, the High Court revisited these principles, clarifying the extent to which video evidence may be admitted and emphasizing that the failure to prove authenticity and integrity is fatal to admissibility.

Facts

The Plaintiff sought to rely on a video recording as evidence to prove that construction works had been undertaken on an access road. The Defendants objected to its admissibility on grounds that:

The video had been altered contrary to section 6(1)(a) of the Electronic Transactions Act.
The recording was not transcribed into English, contrary to section 88 of the Civil Procedure Act, yet it contained non-English voices.

The Plaintiff countered that the video was merely rearranged without substantive alteration, and that the background audio was irrelevant as the visual content (construction activity) was the probative element.

Arguments of the Parties

Defendants:
- Alteration in the video rendered it inadmissible.
- Being an audio-visual record, the absence of transcription of background voices offended civil procedure requirements.
Plaintiff:
- The video complied with section 6(2) of the Electronic Transactions Act since the rearrangement did not affect integrity.
- Transcription was unnecessary as the voices were irrelevant background noise, with the video’s visuals being the evidence relied upon.

Court’s Analysis and Findings

Justice Kaahwa reviewed section 6 of the Electronic Transactions Act, which requires that for data messages to be admissible, their integrity and authenticity must be demonstrated. The Court emphasized:

“The original device from where [the recordings] were copied is not before the court. It is therefore not possible for this court to reach a conclusion that the video was [unaltered].”

Relying on comparative jurisprudence, including US v Briscoe (7th Cir. 1990), Union Trade Centre Ltd v Attorney General of Rwanda, and R v Masqud Ali & Asiq Hussan (1965), the Court stressed that admissibility hinges on the accuracy, authenticity, and ability of the opposing party to test the reliability of electronic evidence.

While the Court accepted the Plaintiff’s argument that transcription of irrelevant background noise was unnecessary, it found the Plaintiff failed to discharge the burden of proving non-alteration, as the original recording device was not produced.

Holding

The Court held that the video recording fell short of the statutory standard for admissibility and accordingly rejected it as evidence.

Key Legal Principles

Authenticity & Integrity of Electronic Evidence:
Under section 6 of the Electronic Transactions Act, the proponent of electronic evidence must prove that the record remains complete and unaltered, except for normal changes in communication, storage, or display.
Burden of Proof:
The party tendering electronic evidence bears the burden to show authenticity, including production of the original source or device.
Audio vs Visual Components:
Where only visual content is probative, absence of transcription may not bar admissibility, provided the voices are irrelevant.