8 June 2021 by and Dispute Resolution Alert

Virtual cats and affidavits

“I’m here live, I’m not a cat.” The words of US lawyer Rod Ponton achieving instant notoriety in a court hearing over Zoom in February this year. Mr Ponton was only a virtual cat - not existing physically but made to look real by software - but it is troubling that someone can appear in real time video as something that they are not. We are OK with virtual reality – a software generated experience that appears real but isn’t – but are we really OK with deepfake technology, which allows people’s images to be transposed onto a pre-existing video and enhanced by a voice clone to create a fake.

Predictions are that soon the technology will allow this to happen live and make it impossible to tell the real from the fake. Judges are unlikely to be hoodwinked into allowing talking animals to appear in a virtual court, but real-time deep fakes could convince the judge to accept a criminal imposter as the actual person.

Meanwhile, many of us are enjoying the freedom to work from wherever and expect this to be embraced universally. Hence the question: In a world of virtual cats and deep fakes, what about virtual affidavits?

The Justices of the Peace and Commissioners of Oath Act dates back to 1963 (three years before television audiences marveled at Captain Kirk and Mr Spock using handheld communicators in the first series of Star Trek) so we know there can be no reliance on the intention of the legislature to include Zoom, Teams or WebEx. That Act also has a peremptory requirement that the deponent should be “in the presence of” the commissioner of oaths. The intention of that Act was undoubtedly to require a physical presence and pointing to the Electronic Communications and Transaction Act doesn’t help. Though it legislates the validity of electronic documents and regulates electronic signatures it doesn’t speak at all to the act of commissioning.

Courts hearing evidence over a virtual link, have cautiously required safeguards like the actual presence with the witness of an independent attorney to verify the identity of the witness, that the witness is not being coached by someone off camera and on recent experience to make sure that the witness or lawyer appearing on the screen is a real person, not a cat.

Although most affidavits are accepted without issue, if an affidavit is challenged it is for the party relying on the affidavit to prove its validity. Whilst virtual affidavits for administrative purposes might pose minimal risk, virtual affidavits in litigation should be approached with more caution especially when weighed against the potential consequences of a successful challenge by a clever opponent. Commissioners of oaths should also be aware of their own risk in agreeing to fulfilment of a statutory function outside the dictates of the statute. Unquestionably the law should already have changed to avoid an unnecessary and in current times, potentially hazardous requirement of physical presence but whether that change is through development of the law by our courts or amendments by Parliament it should include a tailored process like in some foreign jurisdictions including Australia and Ireland.

Until then, deponents and commissioners will determine their own appetite for risk while we look forward to the imminent appearance in one of our virtual courts of a unicorn or pirate and the witty comments that will surely follow. Comments on Mr Ponton’s claims that he is not a cat included “That’s exactly what a cat pretending to be a human would say”, “He suspiciously denies being a cat even though no one accused him” and, referring to the judge’s statement “I think it’s a filter”, one comic noted that the judge was “Not totally ruling out that he [Mr Ponton] may be a cat”.

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