In today’s world, every one of us uses electronic communications—it could be WhatsApp messages, emails, call logs, computer files, social media chats, etc. Since most communication now happens through these mediums, digital evidence has high relevance. In the United Arab Emirates, digital evidence plays a crucial role in both criminal and civil justice systems.

Under Article 1 of the Federal Decree-Law No. 34 of 2021 on Combating Rumours and Cybercrimes, digital evidence is defined as any electronic information that has probative value and is stored, transmitted, extracted, or derived from computer systems, information networks, or other technological means. On a broader perspective, a wider definition that extends beyond criminal law to include civil and commercial transactions is given in the Federal Decree-Law No. 35 of 2022 on Evidence in Civil and Commercial Transactions. Article 53 defines electronic evidence as any data or information generated, stored, copied, transmitted, or received through information technology on any medium, provided it is retrievable in an understandable form. These terms may be used interchangeably, but usually “digital evidence” is used in criminal proceedings, while “electronic evidence” serves as an umbrella term covering various areas of law.

Legal Framework in UAE

In Criminal Law

  1. Federal Decree-Law No. 34 of 2021 on Combating Rumours and Cybercrimes – Under this Federal Decree-Law, Article 18 addresses tampering with digital evidence. It applies to website owners and account holders on information networks. It becomes a criminal offence when a person conceals or tampers with digital evidence relating to cybercrime offences. The penalty imposed is a minimum of 6 months’ imprisonment and/or a fine of at least AED 200,000.
  2. Further, Article 65 provides for the probative force of digital evidence and recognises digital evidence obtained from electronic devices, information systems, software programs, IT equipment, and storage media. The section further states that digital evidence can be used as proof in court and has the same evidentiary value as physical forensic evidence.

In Civil Law

  1. Federal Decree-Law No. 35 of 2022 on Evidence in Civil and Commercial Transactions – Article 54 mentions all forms of digital materials such as electronic records, signatures, emails, communication tools, media, and any other form of electronically generated data. Electronic evidence is treated under the same rules that apply to documentary evidence.
  2. Federal Decree-Law No. 46 of 2021 on Electronic Transactions and Trust Services – This law establishes a fundamental shift in the UAE’s approach to electronic documentation and digital proof by confirming that electronic documents do not lose their legal validity or enforceability merely because they exist in digital form. Article 5 further clarifies that the legal force of data contained in electronic documents remains intact so long as it is accessible within the originator’s information system, and the document clearly indicates how such access can be obtained.

Procedural Requirements for Electronic Evidence

The procedural requirements of electronic evidence are provided under Articles 60–64 of the Federal Decree-Law No. 35 of 2022 on Evidence in Civil and Commercial Transactions:

  1. The electronic evidence must be produced in its original electronic format or through any electronic means. The court may request a written version of the content if its nature allows it.
  2. If a party refuses, without valid reason, to produce electronic evidence required by the court to verify its authenticity, they lose the right to rely on it, or it may be used against them.
  3. If the authenticity of electronic evidence cannot be verified for reasons not caused by either party, the court has the power to assess its probative value based on the circumstances of the case.
  4. Extracts or copies of electronic evidence and electronic payment records have the same legal value as the original, provided they are identical to the electronic record.

Judicial Approach to Digital Evidence

Even though digital evidence is legally recognised, judges retain discretion, and digital evidence alone is usually not sufficient. It must be supported by confessions, witnesses, and expert opinions.

Legality and Admissibility of Digital Evidence

In criminal cases, evidence must be lawfully obtained for the prosecution. Electronic evidence obtained through an illegal search is generally inadmissible. However, in the case of the accused, the judge may consider illegally obtained evidence to ensure fairness.

Case Laws

The Dubai Court of Cassation recently delivered a remarkable judgment (Cassation No. 468 for the year 2024 Civil) explaining the validity of electronic evidence. The case concerned two individuals who agreed to a loan of USD 400,000 through WhatsApp messages without signing a formal contract. The Court ruled that the WhatsApp exchange constituted a valid and binding contract, equivalent in legal weight to a physically signed written agreement. The Court relied on Federal Decree-Law No. 46 of 2021 on Electronic Transactions and Trust Services and Federal Decree-Law No. 35 of 2022 on Evidence in Civil and Commercial Transactions, stating that WhatsApp messages can be considered original documents when the identity of the sender is proven through the mobile number linked to the borrower.

In another case, a landlord served an eviction notice via email with proof of delivery. In this case, the court rejected the email notice and required formal service, while in another instance, the court accepted a WhatsApp acknowledgment as valid notice. Courts generally accept electronic evidence, but only when authenticity and receipt are proven. The key issue is whether the message can be reliably tied to the sender and recipient. In practice, RDC decisions can vary, so digital notices are helpful but may not always replace formal service.

Conclusion

There has been a significant increase in the use of digital evidence as people now rely heavily on digital means of communication. A WhatsApp text or an email can become important evidence in a dispute. Criminal and civil laws clearly address digital and electronic evidence, along with the procedures and conditions governing their use.

However, there remains a need for more detailed technical procedures in certain cases, particularly due to the risks of manipulation and improper extraction of data. Courts continue to adopt varying approaches when dealing with electronic evidence, depending on the facts and circumstances of each case.