With the use of new technologies, the implementation of data messages is recurrent in society, so much so that they have been accepted as valid evidentiary means by Colombian law through Law 527 of 1999 and Article 247 of the CGP, Law 1564 of 2012.
In accordance with the aforementioned regulations, data messages may be used within a judicial proceeding in such a way that they possess efficacy, validity, or binding force and evidentiary value within the proceeding, elements that cannot be disregarded because the information is contained in a data message.
The provisions of Law 527 of 1999 establish the legal requirements that data messages intended to be asserted in the course of a judicial or administrative proceeding must meet, namely writing, originality, and integrity. Regarding writing, this must be understood from two perspectives: on the one hand, the principle of functional equivalence, according to which this requirement is deemed satisfied through presentation by electronic means, provided that the information is subsequently accessible; on the other hand, under Article 247 of Law 1564 of 2012, the writing of a data message is valid when documents that reproduce it accurately, such as a printout, are presented.
Likewise, Law 527 of 1999 sets forth the parameters for the evidentiary assessment of data messages, based on the principles of sound judicial discretion and the rules governing the evaluation of evidence.
Judicial and administrative assessment must additionally consider the reliability of the integrity of the information, since the preservation of data messages must be ensured, from their accessibility, conservation, and subsequent access, which poses challenges for specialized forensic laboratories given the many alternatives for altering this type of messaging, such as rooting devices.
Data messages intended to be asserted as evidentiary elements within an administrative or judicial proceeding may be obtained either through a court order or voluntarily submitted, in which case it must be analyzed whether this element was provided by someone who participated in the conversation and whether this element was obtained by unlawful means; if so, it would constitute illegally collected evidence and must be excluded from the analysis and evidentiary assessment.
On the other hand, when data messages are considered as means of evidence, the general parameters regarding the acquisition of evidentiary elements must be met, that is, a valid court order must intervene, and the rights and freedoms of the device user must not have been undermined.