THE DIFFERENCE BETWEEN DIGITAL EVIDENCE AND EVIDENCE IN DIGITAL FORM

Abstract

At first glance, the two concepts—digital evidence and evidence in digital form—may
seem synonymous. However, while all digital evidence can indeed be classified as evidence in
digital form, not all evidence in digital form qualifies as digital evidence. This distinction leads to
the conclusion that digital evidence constitutes a subset of evidence in digital form. Yet, even this
conclusion is not entirely absolute, as for digital evidence to be admissible in judicial proceedings,
it must satisfy specific prerequisites. These are not merely technical prerequisites—which fall
outside the scope of this paper—but primarily legal prerequisites that determine whether
“ordinary” digital records may be transformed into “admissible” digital evidence capable of
serving as the basis for a court ruling.
Digital evidence, as a specific category of evidence in digital form, is distinguished from
other types of digital-form evidence by the presence of metadata, which serves to substantiate
many of its inherent properties. In the absence of such metadata, digital evidence is reduced to
mere evidence in digital form, lacking the distinctive qualities that render it probative and
admissible.
Metadata is often described as “data about data.” These are digital records which,
although sometimes invisible or, if visible, incomprehensible to the ordinary user of information
technology, provide the unique “fingerprint” of a digital record. Much like a fingerprint left on a
physical piece of evidence, metadata authenticates and preserves the integrity of the digital record.
Without such a “fingerprint,” one might say that “the glass is shattered on the floor, but it cannot
be determined which of those present threw it.” Metadata thus constitutes the DNA of a digital
record. Although technical in its essence, metadata is not merely a technical concept. It also
functions as a legal category, explicitly addressed in numerous legal instruments regulating the
collection of digital evidence, which underscores its fundamental importance.

One of the objectives of this scholarly paper is to make this legal-technical concept more
accessible to legal practitioners—judges, prosecutors, defense attorneys, and others—through
illustrative examples and an interpretation of existing international legal norms, thereby enabling
them to reason in accordance with relevant international standards. At the same time, by examining
domestic (Macedonian) legislation, which addresses this subject within what appears to be a
somewhat “forgotten” statute, the paper seeks to highlight the gaps that must be addressed in order
to ensure the effective application of these norms.
Digital evidence has, by its very nature, always existed in digital form, whereas evidence
presented in digital form may have originally existed in written or oral form.