Electronic Evidence In Saudi Arabia: Admissibility, Types, And Practical Use

Saudi law does not leave digital proof to the court’s discretion alone. The Law of Evidence, issued by Royal Decree No. (M/43) dated 26/5/1443H (30 December 2021) and in force according to the Bureau of Experts platform, devotes a whole Part, Part Four, to what it calls digital evidence. That Part is read together with the Electronic Transactions Law, issued by Royal Decree No. (M/18) dated 8/3/1428H, which is also in force. Read together, the two laws answer the questions a litigant actually faces: what counts as digital evidence, what weight each kind carries, who must prove what when authenticity is challenged, and what happens when a party withholds the material the court asks for. (The Arabic text on the Bureau of Experts platform is the authoritative version; the quotations below are translated from it.)

What the law counts as digital evidence

Article 53 of the Law of Evidence defines the concept broadly: “Digital evidence is any evidence derived from any data that is created, issued, delivered, stored or communicated by digital means, and that is retrievable or obtainable in an intelligible form.” The definition looks to the way the data comes into being and is kept, not to any one format, so it reaches a message exchange and a system record alike. Article 54 then lists what digital evidence includes: the digital record, the digital document, the digital signature, digital correspondence including digital mail, means of communication, digital media, and “any other digital evidence”. Emails fall under correspondence, messaging applications fall under means of communication, and platform or system entries are naturally described as digital records, while the closing phrase leaves room for forms that do not yet exist. The Electronic Transactions Law uses parallel language for the electronic record in Article 1(13): “data that is created, sent, delivered, broadcast or stored by electronic means, and that is retrievable or obtainable in a form that can be understood.”

Read More: Saudi Companies Law

The equivalence with written proof

The consequence that matters most is stated in one sentence in Article 55: “Proof by digital evidence shall have the same ruling as proof by writing set out in this Law.” This matters because the Law of Evidence reserves certain matters for writing. Article 66(1) provides that “every disposition whose value exceeds (one hundred thousand riyals or its equivalent), or whose value is unspecified, must be proved in writing”, and Article 66(2) adds that witness testimony is not accepted to prove the existence or termination of such dispositions unless an agreement or a provision says otherwise. Because Article 55 places digital evidence on the footing of writing, a party can meet that requirement with an email chain or an electronically signed agreement, provided the material carries the weight the law assigns to it. The Electronic Transactions Law reaches the same result from the other side. Article 5(1) states that electronic transactions, records and signatures “shall have binding legal effect” and that their validity or enforceability may not be denied “because they were made, wholly or partly, in electronic form”, on condition that they satisfy the requirements of that law. Article 7 adds that where a law requires a document to be in writing, presenting it in electronic form satisfies that requirement once the conditions of Article 6(1) are met.

Official and unofficial digital evidence

The Law of Evidence does not give all digital evidence the same starting position. Under Article 56, official digital evidence has the probative force of an official document “if it satisfies the conditions set out in paragraph (1) of Article (25)”, which expressly includes what is issued automatically by the digital systems of public bodies or of bodies charged with a public service. Article 25(1) defines the official document as one in which a public employee or a person charged with a public service records what was done at his hands or received from the persons concerned, in accordance with legal procedure and within the limits of his authority and competence. Such a document is conclusive against everyone as to what its author did within his mission, unless forgery is established by the prescribed means, as Article 26(1) provides.

Unofficial digital evidence is governed by Article 57, under which it is “binding on the parties to the dealing, unless the contrary is proved” in three situations: where it was issued in accordance with the Electronic Transactions Law or the E-Commerce Law, where it is drawn from a digital means specified in the contract in dispute, or where it is drawn from a digital means that is authenticated or made available to the public. Anything outside those three situations is not left without value, because Article 59 gives it “the probative force established for the ordinary document”. The practical lesson for a commercial party is that a contract clause naming the channel through which notices, approvals or instructions will be exchanged brings later messages sent through that channel within Article 57(2), which is a stronger position than relying on Article 59 alone.

Who bears the burden when authenticity is challenged

Article 58 allocates the burden: “The opponent who alleges that the digital evidence provided for in Articles (56) and (57) is not authentic bears the burden of proving his allegation.” Digital evidence that falls within those two Articles is therefore presumed sound until the opponent proves otherwise. The Electronic Transactions Law supports the presumption in Article 9(3), which treats the electronic transaction, the electronic signature and the electronic record as “an authoritative proof in dealings” and as unchanged since creation “unless the contrary appears”. Article 9(1) accepts an electronic transaction or signature as evidence when its electronic record meets the technical requirements of Article 8, and Article 9(2) allows it to be accepted as a presumption even when it does not. Article 8 in turn describes the qualifying record: an electronic record is an original in itself when technical means and conditions confirm the integrity of its information from the time it was created in its final form and allow that information to be displayed when required.

Where authenticity does become the real dispute, Article 9(4) of the Electronic Transactions Law sets out what the court weighs: the degree of confidence in “the method used to create, store or communicate the electronic record, and the possibility of modifying it”, in “the method used to preserve the integrity of the information”, and in “the method by which the identity of the originator was determined”. Attribution of messages is addressed separately by Article 30 of the Law of Evidence, which gives correspondence that is signed, or shown to originate from its sender, the probative force of the ordinary document “unless the sender proves that he did not send the message and did not authorise anyone to send it.” Article 12 of the Electronic Transactions Law adds that an electronic record is treated as issued by its originator when he sent it himself, when another person sent it on his behalf, or when it was sent by an automated system he programmed to act automatically on his behalf.

How the evidence is presented to the court

Article 60 of the Law of Evidence provides that “digital evidence shall be submitted in its original form or by any other digital means, and the court may request that its content be submitted in writing whenever its nature allows.” A party should therefore be able to produce the material as it exists on the device or system, not merely a description of it. Article 63(1) deals with extracts and printouts: they have “the probative force established for the evidence itself, to the extent that the extracts conform to their digital record”, and Article 63(2) applies the same rule to extracts from digital payment means. A screenshot or print is thus worth as much as the record it reproduces and only insofar as it matches that record, which is why the underlying record should remain available to be compared against it. Article 10 of the Law of Evidence adds that any evidentiary procedure taken electronically has the effects the Law prescribes, so the taking of evidence by electronic means is itself recognised. (This is Article 10 of the Law of Evidence, distinct from Article 10 of the Electronic Transactions Law, which deals with contract formation.)

On preservation, the Law of Evidence is silent about how a private party should store its records before a dispute, and the answer lies in the Electronic Transactions Law. Article 6(1) provides that where a law requires a document or information to be retained, the requirement is met by retention in electronic form on three conditions: the record is kept in the form in which it was created, sent or received, or in a form that makes it possible to prove that its content matches the original; it remains available for later use and reference; and the information that identifies the originator and the addressee, and the date and time of sending and receipt, is kept with it. Article 6(3) leaves the detailed procedures to the Implementing Regulations. Those three conditions describe, in the law’s own terms, what a business needs to keep if it expects to rely on a record later.

Read More: Real Estate Law Consultations in Saudi Arabia

When a party withholds or the record cannot be verified

The Law of Evidence also addresses what happens when verification breaks down. Under Article 61, if a party refuses without an acceptable excuse to provide what the court requested in order to verify the digital evidence, “his right to rely on it shall lapse, or it shall be deemed evidence against him, as the case may be.” Where verification is impossible for a reason that is not attributable to the parties, Article 62 provides that the court assesses the evidence’s probative force “according to what appears to it from the circumstances of the case.” Where the dispute turns on technical questions, Article 110 allows the court, on its own motion or at a party’s request, to appoint one or more experts “to give an opinion on the technical matters required for the determination of the case”, and Article 64 fills any gap by applying the rules on writing in Part Three to digital evidence to the extent they are consistent with its digital nature.

Taken together, these provisions show that the question in Saudi proceedings is not whether a record is digital but which category of digital evidence it belongs to and whether the party relying on it can meet the tests attached to that category. Article 53 defines the evidence, Article 54 lists its forms, Article 55 equates it with writing, Articles 56, 57 and 59 assign its force according to whether it is official, contractually or publicly authenticated, or ordinary, and Article 58 places the burden of disproof on the party who denies its authenticity in the first two cases. Articles 60 to 63 then govern how it is produced and what follows if it cannot be verified, and the Electronic Transactions Law supplies the standards of integrity, attribution and retention against which a court measures the record. A party who keeps records in the form the law describes, who fixes the channel of communication in its contracts, and who can produce the original record behind any printout, is therefore in the position the statutory scheme was written to protect.