Wayback Machine captures as evidence: how courts in the US, EU and Australia treat them

United States: authentication by a witness

In United States v. Gasperini, decided on 2 July 2018, the Second Circuit found no abuse of discretion in admitting Wayback Machine screenshots ². The government called the Internet Archive's office manager, who explained how the Archive captures content. The witness compared the screenshots with the Archive's records and testified that they were authentic and accurate copies ². The court said the defendant could cross-examine the witness, so the jury could decide what weight to give the records ².

The Second Circuit distinguished Novak v. Tucows, a nonprecedential summary order in which the party offering the pages gave no testimony about where they came from ². It followed United States v. Bansal, a 2011 Third Circuit case in which a witness with personal knowledge testified about how the Wayback Machine works ².

United States: no judicial notice

Judicial notice lets a court accept a fact without proof when its accuracy cannot reasonably be questioned. In Weinhoffer v. Davie Shoring, the Fifth Circuit held on 20 January 2022 that the trial court erred in taking judicial notice of auction terms on an archived webpage ¹. It said a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned ¹.

The Fifth Circuit found persuasive the view of other circuits that the Wayback Machine is not self-authenticating. It cited Gasperini (2018), Specht v. Google (2014) and Bansal (2011), in which courts relied on archived pages authenticated by someone with personal knowledge of the archive ¹. It noted a Federal Circuit view in Valve v. Ironburg (2021) that judicial notice could show an otherwise authenticated exhibit was public on its archive date ¹.

European Union and the EPO

In Case T-580/25, an EU design invalidity case, the General Court said on 29 April 2026 that a Wayback Machine screenshot may corroborate the reliability of a website screenshot ³. It said the mere abstract possibility that a website's content or date was manipulated is not enough to set the evidence aside ³. It said a failure to certify the evidence does not oblige the court to reject it ³.

The Boards of Appeal of the European Patent Office apply the balance of probabilities to internet citations, according to the EPO's Case Law of the Boards of Appeal ⁵. In T 523/13 a board found a Wayback date stamp established with sufficient certainty, absent proof otherwise ⁵. The EPO's examination guidelines say the Internet Archive's incompleteness does not detract from the credibility of the data it does archive ⁶.

Australia: hearsay and limited use

In Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2), Burley J of the Federal Court of Australia gave reasons on 23 September 2019 ⁴. He said the archived page content was hearsay but the dates applied by the Internet Archive were not ⁴. The captures were not business records under section 69 of the Evidence Act 1995, as the archive is the Internet Archive's output ⁴.

The court dispensed with the hearsay rule under section 190(3) and admitted the captures only to prove that a website was available and what particular pages showed on particular dates, not the truth of facts in them ⁴.

What the cases have in common

• Courts ask how the archive made and stored the capture, through a witness, an affidavit or other evidence ^1,24.
• A capture usually proves what a page showed on a date, not that its contents were true ⁴.
• Concrete doubts about a capture count more than abstract ones in the EU General Court's view ³.
• The Wayback Machine's own terms disclaim guarantees of accuracy, a point one Texas district court relied on, as noted by the Fifth Circuit ¹.