Social media and evidence

Most young people now use social media, the Internet, e-mail, and instant messaging to communicate. In the future, these people will make up the majority of potential litigants and the digital photos and videos that they post to social media and other Internet sites may become primary sources of relevant information about them.

The courts are now faced with establishing guidelines for the use of Internet media at trial. In a recent case, the Court commented on Internet material as follows:

The Internet is an abundant source of information. Some of the information available is impeccably accurate, while other information is pure garbage. It does not make sense, on the one hand, to conclude that any and all information pulled from the world-wide web is inherently unreliable and ought to be given zero weight; on the other hand, it makes equally little sense to open the door to admitting into court absolutely anything placed on the internet by anybody.1

The generally accepted test for Internet admissibility is based on the following three factors:2
1. Whether the information comes from an official website from a well-known organization.
2. Whether the information is capable of being verified.
3. Whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.

Litigants have begun tendering images and their metadata as evidence in Canadian civil, criminal and family courts. Social media has been used in personal injury cases, family law cases, and employment cases. In personal injury cases, defence lawyers (i.e., retained by the defendant’s insurance company) have tried to use, and in some cases have succeeding in using Facebook photos to challenge credibility. They argue that the photos are inconsistent with the injuries claimed by those plaintiffs.

In family law cases, information posted electronically on social media sites have been used to show evidence of estrangement or alienation between parent and child; to show the poor parenting skills or judgment of an alleged “unfit parent;” to show capacity to work or to demonstrate lifestyle (think Charlie Harper in “Two and a half Men”); to support or refute an alibi (“Honey, this looks bad, but it’s not what you think!”); and even, the impartiality of an expert witness (“Facebook Friends”).

In employment law cases, Internet postings of words and pictures (think “office Xmas party pix”) have created a gold mine of information for employment lawyers to use to allege “just cause” for dismissal of employees, or to support an allegation of wrongful dismissal or constructive dismissal.

Savvy security professionals know that true and accurate information, whether in the form of words or pictures, is of value when used properly. Whether you are “Googling” prospective employees or “checking out” the competition on LinkedIn, bear in mind that information is only reliable if it can be independently verified or corroborated.  

Elliott Goldstein, B.A., J.D. is a Woodbridge, Ont.-based lawyer (elgold@rogers.com).

1. See Thorpe v Honda Canada Inc. [2010] S.J. No. 77, 2010 (SKQB 39 (Sask. Q.B.).
2. Ibid., per Justice Popescul, summarizing the ITV Technologies factors.