Nowadays, millions of pieces of information are produced by the users of the most diverse existing technologies. It is based on this that the Law has been seeking to regulate and adapt the data generated, using such elements as a means of proof.

Digital evidence is information obtained through data generated by technological means, which can be used in the search for the truth of the facts, such as geolocation records, messages sent through cellular applications, posts on social networks, biometrics, photo metadata, corporate database searches, and even IP tracking.

The information collected digitally has the power to rule out the production of oral evidence, cooperating with the economy and speed of the process.

As an example, one can cite geolocation and its ability to rule out the condemnation of companies to pay overtime. This is because it is not rare that time cards provided by companies have uniform entrance and exit times, being considered invalid as a means of proof, as provided by Precedent 338, III of the TST. 

Therefore, the geolocation data provided by the cell phones, as well as the radio base station services - equipment that connects the cell phones to the telephone company - can demonstrate that during the alleged overtime hours the employee was not on the company's premises, thus ruling out the condemnation claimed by the complainant. 

Furthermore, it is worth noting the performance of the Judge of the 1st Labor Court of Parauapebas (PA) in determining the adoption of digital evidence. In the records of case no. 0000632-79.2020.5.08.0130, the data collected through the Radio Base Stations, provided by the Telephone Operator Oi Móvel S. A, allowed the clarification as to the place of work of the claimant, a fact that was controversial of the demand. 

However, in order to avoid fraud and manipulation of digital evidence, it is essential to attach the source codes and metadata of the documents to the records, in order to confirm the effective existence of the item attached as evidence, giving the evidence greater credibility.

Digital evidence is legally foreseen in article 765 of the CLT, which determines that the labor courts will have ample freedom in directing the process, striving for procedural promptness and being able to determine any diligence necessary to clarify the facts. Furthermore, article 369 of the Code of Civil Procedure determines that the parties may use all legal and morally legitimate means to prove the truth of the facts and to effectively influence the judge's conviction, and that the judge is responsible for determining the evidence necessary to judge the merits, as provided in article 370 of the same legal provision. 

The General Law of Data Protection (Law 13. 709/2018) authorizes the use of personal data in the event of the exercise of rights in legal proceedings or for the fulfillment of legal obligations, as provided in articles 7, item VI and 11, item II, "a". 

In addition, the Internet Civil Rights Framework (Law 12. 965/2014), in its article 10, §1, provides for the mandatory availability of internet connection and access records, as well as personal data and private communication content, upon court order. It should be noted, however, that the provider is only obliged to keep the connection logs for at least 1 year and the internet application logs for at least 6 months, as provided in articles 13 and 15 of the same legal provision.  

In practice, it is verified that professionals make little use of the wealth of information generated by the use of the internet, due to the lack of experience and knowledge on the subject. With this in mind, the Labor Courts have been investing in the training of judges in the analysis of evidential means, through a joint initiative of the Superior Council of the Labor Court and the National School for Training and Improvement of Labor Magistrates, in order to ensure greater security in the use of digital evidence. 

In this sense, the use of digital evidence in the labor process is an excellent way to prove the facts and guarantee the rights of companies, as long as its veracity is demonstrated. This can be done by means of notarial minutes or verifact applications, for example, which serve to register the information collected through digital means, attributing legal validity to the document. verifact, por exemplo, os quais servem para efetivar o registro das informações coletavas através dos meios digitais, atribuindo validade jurídica ao documento. 

By: Marina da Silveira Pinto

CPDMA Team | Labor Law