Are web archives stored in Wayback machines (including Archive.org) admissible in legal proceedings and, if so, what would be their probative value? Lawyers specializing in settlement of disputes relating to domain names constantly utilize this mine of information, as evidenced by the following examples:
Whether it is a question of demonstrating the bad faith of the holder of a domain name or, on the contrary, proving the legitimate right/interest of the latter, the Wayback machines can be of considerable help.
A remarkable CEPANI decision recently demonstrated, once again, the efficacy of the Wayback Machine (CEPANI, 444149, La SRL ASBL / La SA Perceval Technologies, December 8 2021, <asbl.be>, denied, sole panelist Emmanuel Cornu). A Belgian company called ASBL planned to obtain control of the domain name <asbl.be>, held by Perceval Technologies since 2000. ASBL claimed that Perceval Technologies had registered the domain name in bad faith. According to the complainant, the passive holding of the domain name for more than twenty years revealed the Respondent’s bad faith. However, the latter established a legitimate use of the domain name, at least for a time. Indeed, Perceval Technologies had effectively used <asbl.be> to offer Internet services (including subdomains, such as <name.asbl.be>) to non-profit associations (Associations Sans But Lucratif, in French). Perceval Technologies provided evidence of such use in support of this allegation, particularly records from Web archives. Although the parties did not raise the issues of admissibility and probative value of such documents, the sole panelist made a point of specifying:
“It should be noted that the probative value of the archives of websites obtained using the “Wayback Machine” tool, also called “internet archives”, has been recognized several times by case law, in particular by the General Court of the European Union (TUE, June 30 2021, “Framery Oy / EUIPO – Smartblock Oy“, T-373/20, ECLI:EU:T:2021:400, para. 24) or by the Board of Appeal of the European Patent Office (EPO, May 21, 2014, “Pointsec Mobile Technologies / Bouygues Telecom, ECLI:EP:BA:2014:T028610.20140521, points 4.1 and 4.2).
In its decision of June 30, 2021, the Court of the European Union had implicitly accepted the probative value of the extracts taken from the Wayback Machine (TEU, June 30, 2021, T‑373/20, Framery Oy, v. EUIPO and Smartblock Oy, paras. 24 and 28: curia.europa.eu).
More explicitly, the probative value of the documents extracted from Archive.org has been recognized and admitted by the European Patent Office:
“4.1 The board, partly for the reasons given above, disagrees with the finding in T 1134/06 that, as a matter of principle, Internet archives are unreliable. In particular, the board considers that usually the fact that a document was archived by the Internet archive www.archive.org on a specific date, except of course in a specific circumstance giving rise to suspicion, constitutes in itself a sufficient presumption that the document was made available to the public on the day of download and, made available to the public via the Internet Archive itself shortly thereafter.
4.2 The Internet Archive, a private, non-profit archiving initiative (see also T 1134/06, reasons 3.2), makes earlier snapshots of the Internet available to the general public. Since its creation in 1996, it has become very popular and has developed a good reputation. Even if the volume of processed data is enormous, the archive is, of course, only an incomplete collection of previous Internet pages. However, classical libraries are also incomplete without affecting the credibility of the information available. Although the chamber does not deny that doubts about the individual entries in the Internet archive may arise, the chamber considers that the archive itself presents sufficient guarantees to benefit from a presumption of a reliable and trusted source of information. It is up to the opposing party to produce, depending on the case, the elements likely to cast doubt on this presumed reliability and thereby destroy this presumption.
4.3 For this reason, it cannot be sufficient for the Respondent to limit itself to invoking in general a lack of reliability of the Internet archive to question the date of public accessibility of a document archived on www.archive.org (EPO, Board of Appeal, T 0286/10, Bouygues Telecom v. Pointsec Mobile Technologies AB, May 1, 2014, pp. 11-12: epo.org)”.
In other words, the fundamental rules of evidence apply: it is up to the adjudicatory authority to decide on the admissibility and probative value of the evidence. However, it is essential to clarify that this is only a rebuttable presumption.
In the beDRP procedure concerned, the sole panelist embraced this reasoning to admit the evidence provided by Perceval Technologies, which contributed to the rejection of the transfer request.
Finally, among other well-founded arguments undeniably unfavorable to the complainant, the sole panelist recalled a fundamental rule: “the more the distinctive character of the trademark relied on by the Complainant is diminished, the greater the margin of freedom open to the Domain Name Holder is” (CEPANI, 444149, La SRL ASBL / La SA Perceval Technologies, 8 décembre 2021, <asbl.be>, rejet, tiers-décideur Emmanuel Cornu).