Social Media and the Law - LawNow Magazine

Social Media and the Law

social-media-and-the-law

I. INTRODUCTION

In today’s world, a number of social networking sites (“SNSs”) have arisen, whereby people from all over the world are beginning to communicate with each other in new ways on the Internet. SNSs are a cultural phenomenon which have revolutionized interpersonal communication and will continue to do so.SNSs are a cultural phenomenon which have revolutionized interpersonal communication and will continue to do so.

SNS users virtually trip over themselves to share a plethora of extremely personal details on their SNSs, including posts, photographs, residential details, hobbies, likes, dislikes, etc. Many SNS users seem to have no clue as to how little privacy they leave themselves. When people work on a computer alone in a room they can fail to appreciate that they are communicating with the world.

Many people have learned how to access a person’s information by accessing their SNSs including:

  1. Employers screening prospective employees;
  2. Insurers monitoring the lives of people making disability claims or receiving benefits;
  3. lawyers, police, investigators or others locating and communicating with witnesses, suspects and people they are trying to find; and
  4. lawyers, police, investigators or others seeking information and evidence about suspects, opposing clients, witnesses and potential jurors.

Four aspects of SNSs are of particular interest:

  1. Privacy settings. Most SNSs set default privacy settings which users may change (to increase or decrease privacy). Facebook employs the concept of registered “Friends” such that one can restrict accesses to his/her profile only to people accepted as “Friends”. A user’s privacy settings may be effectively downgraded if his/her information is shared with Friends who have lower privacy settings. You can find information about someone on a Friend’s profile where access to it has been restricted on the subject’s own profile.
  2. Account deactivation and deletion. Deletion is the permanent removal of all user personal information from the SNS whereas deactivation merely renders the data inaccessible to other users (although it may remain on the SNS database indefinitely until deletion or reactivation is requested). Data on a deactivated profile can be accessed by request or litigation.
  3. Accounts of deceased users. Many SNSs permit a user’s profile to remain active after his/her death, so that its information can still be accessed.
  4. Personal information of non-users. SNS users often disclose information about non-users on their SNS profiles without the non-users’ knowledge or consent. The most obvious example is that of posting and/or tagging photographs of non-users. So, if you do something embarrassing in this age of cellphone cameras, it may get posted without your knowledge or consent to someone’s SNS profile.
II. CIVIL LAW APPLICATIONS
A. Background Information On Litigants And Witnesses

How does one find out important facts about key people, especially opposing litigants, witnesses or jurors, preferably without the search coming to their attention?How does one find out important facts about key people, especially opposing litigants, witnesses or jurors, preferably without the search coming to their attention? Nowadays, information-gathering is much easier with SNSs which can be accessed by others.

One must scrutinize the authenticity of an SNS profile. Fake profiles can be set up to embarrass someone or to conduct questionable Internet activity e.g. where someone sets up an SNS profile in another’s name and uses it to cyberbully others using that name.

SNS evidence has been instrumental in challenging credibility of personal injury plaintiffs. People who claim to be disabled have been “caught” being active by photos and posts on SNSs. Also, the pattern of use of one’s site (reflected in the metadata) can be relevant. For example, in the 2009 case of Bishop v. Minichiello, the British Columbia Supreme Court decided that where a claimant alleges that fatigue prevents his working, his use of an SNS during night time hours was relevant.

There are two ways to get information on someone’s SNS profile: accessing the public profile contents, and applying to court for orders to preserve and access them. The former can be done surreptitiously and sprung on the subject in court by ambush, while the latter requires notice to be given.

One can obtain access to an opponent’s SNS profile through the pre-trial document production and discovery process and with assistance from the courts. Information about an SNS profile’s contents can be elicited through questions at discovery, cross-examination on the affidavit of records, applications for preservation orders and/or interim injunctions, applications for production, or applications to compel the SNS site itself (as a third party) to disclose information.

Litigants must disclose relevant and material portions of their SNS profiles in the affidavit of records. Such materials are “documents”, subject to disclosure.

A claim of a privacy interest over SNS contents will generally not preclude disclosure where disability or other relevant facts are in issue.A claim of a privacy interest over SNS contents will generally not preclude disclosure where disability or other relevant facts is in issue. Disclosure will not be ordered only where the probative value of the data is outweighed by the cost, expense and prejudice involved.

Under Rule 5.13 of the Alberta Rules of Court, one can compel production from third-party strangers to the litigation (e.g. SNS providers), including data on deactivated profiles. However, SNS servers can be based anywhere in the world, raising issues of jurisdiction. Under the Canada Evidence Act and the Alberta Evidence Act, one must ask the Alberta court to ask the foreign court to compel production.

B. Communication, Notice and Service

SNSs are places where you may be able to find and communicate with people. Courts now allow substitutional service by way of social networking sites. [Knott v. Sutherland; unreported, 5 February 2009, Action No. 0803-02267m AltaQB]

III. CRIMINAL LAW APPLICATIONS

A. Information/Evidence Gathering

SNSs can be employed in criminal law in much the same way. Credibility is often a critical issue in criminal cases. Counsel can and should look to SNSs when assessing a witness’s credibility.Credibility is often a critical issue in criminal cases. Counsel can and should look to SNSs when assessing a witness’s credibility. SNSs can provide evidence that supports a litigant’s position, including admissions by opposing litigants or witnesses. Various SNSs feature message boards, whereby local user networks can communicate with one another, from which information can be gleaned.

The criminal law does not provide the same judicial remedies to the defence to access private portions of a subject’s SNS as does the civil law. However, police have search and seizure powers that provide them with more powerful tools to obtain access to SNS profiles, subject to the s.8 Charter right for individuals to be secure against unreasonable search and seizure. Also, under the Criminal Code, service of criminal pleadings online is not available.

B. Police On the Internet

Police are better trained, have better software and are more experienced in the employment of the Internet than the average person or counsel. Police employ SNSs for the following:

  1. locating people (witnesses, suspects or persons of interest);
  2. collecting evidence of crime (e.g. admissions of crime or other information), using false online profiles; and
  3. identifying suspects from photos posted on SNSs that match information from witnesses.

Different SNS providers interact differently with police; some readily disclose information on request, while others require subpoenas or warrants. Nowadays, many Internet and cellphone providers are adverse to the expense and hassle of having to respond to a growing number of requests from police for access to their customer data. R. v. Telus Communications Co., 2013 SCC 16

C. Jury Trials

SNSs must be considered with respect to two aspects of jury trials: vetting of prospective ;and the conduct of jurors during the trial.

The courts allow prosecutors to have police review police records regarding the existence of criminal records of potential jurors R. v Emms, (2010), INCA 817. Nothing prevents defence counsel from accessing or monitoring the public portions of SNS profiles of potential jurors.

Concerns have arisen regarding juror online activity during trial, including:

  1. seeking suggestions from online contacts and friends regarding how to vote;
  2. “friending” and communicating with others (including the accused);
  3. expressing views on the accused’s guilt or innocence;
  4. researching on their own, e.g. via Google searches; and
  5. posting details of the jury’s deliberations AR. v. Shabir Ahmed, [2014] EWCA Crim 619.

Judges are now instructing juries against these practices.

D. Publication Bans

Canadian courts can impose publication bans on various proceedings pursuant to the Criminal Code, including bail hearings, preliminary inquiry evidence, complainant identities and voir dire evidence. Publication bans have been subverted by posting information to an SNS. The courts must grapple with enforcement of publication bans in light of such activity.

E. Criminals On The Internet

Criminals employ the Internet, including social networking sites, to commit crimes, including fraud, stalking and cyber-bullying.

The bottom line is that users must beware of what they post on SNSs as it can provide valuable information to others, such as opposing counsel, who may effectively employ SNSs to fight their cases.

 

Authors:

Brian A. Vail
Brian A. Vail, QC is a partner with Fieldlaw in Edmonton, Alberta.
 


A Publication of CPLEA