A guy would dare to send a text message to a girl with the false promise of marrying her thinking "who would take a just SMS seriously". But beware! She can take you to Court for breach of promise of marriage since the Sri Lankan Court accept SMS as admissible evidence in cases!

Justice K. T. Chitrasiri of the Commercial High Court of Colombo in a recent case accepted Short Message Services (SMS) as valid evidence before a Court of law. In the money recovery case of Marine Star (Pvt) Ltd. vs Amanda Foods Lanka (Pvt) Ltd., the Plaintiff Company produced to the Court photocopies of several SMSs sent by the Defendant Company, to prove the liability or the Defendant. The SMSs were objected by the Counsel for the Defendant saying that no provision in law is available for the Court to admit the contents of such documents in evidence. However, after a careful consideration of the matter Justice Chitrasiri delivered his judgment justifying the reasons for admitting SMSs as valid evidence in law. "As it concerned an important issue on rules of evidence, especially at a time when there is a rapid development in technology taking place, Court decided to consider the issue carefully", the judgment states.

The screenshots of the SMSs which were produced before the Court could not be regarded as "primary evidence" since they were copies of the original SMSs. Hence the Judge stated that they belong to the category of "Secondary Evidence" under the Evidence Ordinance of 1895. Section 63 of the Evidence Ordinance stipulates that "Secondary Evidence" includes copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copies. Moreover, an oral account of the contents of the documents given by a person who has himself seen it is accepted as secondary evidence. Accordingly, the Judge states that unless the original message of the copy of the SMS received on the screen of the mobile phone is admissible in evidence, the said photocopy could not be regarded as evidence. Thus, the primary issue before the Court was to determine whether the message received on the screen of a mobile phone could be considered as a document according to the law.

Trying to meet this challenge the Court dealt with two cases : Abubakhar vs. Queen (54 NLR 566), and In re S.A. Wickramasinghe (55 NLR 511) where broad interpretation was given to the term "document". Citing these cases, the judge observed that "the Courts in this country had been making efforts to widen the scope of the meaning given to the word "document" relying upon the interpretation referred to in Section 3 of the Evidence Ordinance. Thus, it is evident that even from very olden days, Courts in this country were very much inclined to admit and rely upon the evidence which have been generated with the assistance of technology, despite the fact that such evidence did not appear on a surface similar to a sheet of paper".

Section 3 of the Evidence Ordinance interprets the term "document" as any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, used for the purpose of recording that matter. In the modern context where technology has moved a long way forward, interpreting SMSs as "documents" sounds very reasonable.

Thus the Court held that short messages received on the screen of a mobile phone

which had been typed by another person from a different point and was sent with the assistance of technology, could be admitted in evidence. "In the circumstances, I decide that the original message received by a mobile phone should be considered as admissible evidence in terms of the provisions in the Evidence Ordinance enacted in the year 1895" the Judgment says.

In addition to the Evidence Ordinance, Justice Chitrasiri also used the Electronic Transaction Act No.19 of 2006 in order to facilitate allowing SMS evidence admissible.The Electronic Transactions Act is aimed at recognizing and facilitating the formation of contracts, the creation and exchange of data messages, electronic documents, electronic records and other communications in electronic form in Sri Lanka. Under this Act, electronic contracts including offer and acceptance of an offer expressed in electronic form are given legal validity and enforceability.

The Judge cited section 21 of the said Act together with the interpretations given to the terms "communication", "data message" "electronic document" and "electronic record" to show that SMSs definitely come under the purview of the Act. "It is my opinion that a short message commonly described as SMS falls within the scope of the Electronic Transaction Act and therefore the evidence sought to be produced by the plaintiff could easily be admitted in evidence under Section 21 of the said Act No. 19 of 2006" he stated in the judgment.

Section 26 of the Electronic Transactions Act interprets the word ‘communication’ as "any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer that a person is required to make or chooses to make in connection with an electronic transaction within the meaning of this Act". Under the same section "data message" means information generated, sent, received or stored by electronic, magnetic, optical or other similar means. "Electronic" means information generated, sent received or stored by electronic, magnetic, optical, or similar capacities regardless of the medium. The term "electronic document" is interpreted as to include documents, records, information, communications or transactions in electronic form".

After laying down the two methods available in law, namely the Evidence Ordinance and the Electronic Transaction Act, to admit the SMS messages in evidence, the Judge goes on to state that the basis on which he relies upon the provisions of the Evidence Ordinance depends on the interpretation given to the word "document". Whereas the decision to act in terms of Section 21 of the Electronic Transactions Act is based upon the object of the Act namely the recognition accorded to the new developments in technology. The Judge has said that he does not see any contradiction between the two to disregard the provisions of the Evidence Ordinance as far as the instant issue is concerned. "Thus, it is my opinion that this Court is free to make use of either provision" he states.

The Electronic Transactions Act was introduced in 2006 in order to facilitate domestic and international electronic commerce by eliminating legal barriers and establishing legal certainty, to encourage the use of reliable forms of electronic commerce, to facilitate electronic filling of documents with Government and to promote efficient delivery of

Government services by means of reliable forms of electronic communications and to promote public confidence in the authenticity, integrity and reliability of data messages, electronic documents, electronic records or other communications. As such, the judgment should be hailed as one which tries to achieve those objectives. The Commercial High Court has made use of the Act to interpret the law in a novel way especially keeping in line with new developments in technology.

The judgment has been welcomed by number of scholars in the legal field as well as by the general public. "I think that the determination by Justice K.T. Chitrasiri in the Commercial High Court of Colombo is an important one as it takes cognizance of new developments in the law, particularly statute law like the Electronic Transactions Act of 2006 which has as one of its primary objectives the facilitation of domestic and international electronic commerce" Mr. Nigel Hatch, President’s Counsel said commenting on the judgment. "It is in the public domain the SMS messages through mobile phones are widely used and accepting such messages as evidence in the context of money recovery case is to be welcomed. It shows that particularly in commercial matters the judiciary are achieving objects of law having regard to new legal initiatives and interpreting the law in a purposive manner" he further said.