Social Networking:

 
II.             Introduction
In Vancouver, the day after the Stanley Cup finals in 2011, fed up citizens turned en masse to Facebook to search for culprits responsible for vandalizing cars and looting downtown stores. Vigilante web surfers began posting screenshots of individuals bragging to their friends online about participating in the riot, and uncovering photographs of individuals posing in stolen suits or advertising expensive handbags for sale.[1] In Texas, police arrested two bank tellers, the boyfriend of one and the brother of another, after being informed that one of the four posted, “IM RICH”, shortly after the bank they worked at was robbed.[2] In New Brunswick, a defendant in a person injury lawsuit persuaded the judge to force the plaintiff to archive her Facebook account after photos of her zip-lining appeared to demonstrate that her injuries were not as serious as she claimed.[3]
In an era where mobile phones equipped with cameras are common and internet usage has become widespread, investigators and litigators are increasingly presented with potential treasure troves of information voluntarily produced by suspects in a criminal trial or parties in a civil action.[4] A modern obsession with sharing personal thoughts and photographs with online acquaintances has led to incriminating statements and embarrassing photographs proving probative in a wide range of case and often undermining the credibility of witnesses and litigants. As a result, courts across North America are revising and reinterpreting their evidentiary rules to handle evidence gathered from what are commonly known as social networks. Unlike traditional evidence such as eye-witness accounts or fingerprints left at a crime scene, social networking evidence often exists only as a digital record in a data center located in a jurisdiction such as California far removed from the alleged crime or tort.
 
This paper attempts to take a comprehensive look at a wide variety of evidentiary issues, procedural rules, and examples of social networking evidence being used in both criminal and civil cases in both Canada and the United States. We begin with a brief introduction to the major social networks and look at how some, such as Facebook, are used more commonly in the courts. We then look at some of the general statutes which determine how social networking evidence can be accessed as well as briefly examine the US Stored Communication Act which limits under which circumstances a social network may private confidential user content. We then look separately at with social networking evidence in criminal and civil cases. In regards to criminal cases, we examine how social networking evidence can be obtained and used in criminal cases, including the importance of authenticating evidence, as well as ways in which courts have reviewed evidence to eliminate overly prejudicial posts without much probative value or misleading character evidence. On the civil side, we look at how litigants use court processes to discover information about their adversaries, from uncovering unknown individuals involved in online defamation to forcing an adversary to hand over pictures or posts from a private section of a social network account. In particular, we look at how civil courts deal with balancing privacy concerns versus the broader obligation to disclose material which is relevant to a case.
.
III.           About the Social Networks
Social networks are a part of daily life for a large number of Canadians and others across the globe. Websites such as Facebook, Myspace, Youtube, Twitter and LinkedIn let users share statuses, personal pictures, and create personal profiles for themselves, their bands, or social groups. There are estimated to be over 16 million user accounts in Canada on Facebook alone.[5] These websites facilitate individuals sharing aspects of their lives and interests with friends and acquaintances, or the public at large, depending on the settings of the individual platform. Photos, videos, and personal statuses can be added to the website from home computers or from smart phones in the heat of the moment. Mostly located in California, these social networks utilize large data storage facilities and clusters of computers running databases that store user data, and rely on proprietary systems for controlling who can upload files and what privacy settings they use. The scale and complexity of these systems, featuring millions of users accounts[6], means that litigants or investigators must rely upon the retrieval processes of the companies, with very little ability to retrieve data once it has been deleted from the website. Unlike a personal computer where a single drive can be forensically scanned for deleted emails or files, lawyers seeking to use evidence from social networks must often pre-emptively capture the files themselves through a web browser, obtain the cooperation of the opposing party, or in criminal investigations, request that the company hosting web postings preserve a user’s account.
To understand the potential usages of social networking evidence, it is important to understand the background of the companies and how their websites work. Each social networking website has its own unique format and appeals to its own niche. Myspace, one of the earlier popular social networks, originally gained in popularity by allowing anonymous profiles and catering to music fans with the ability to upload music and to customizes how a profile looked. From its founding in 2003 up until early 2009 it was the predominant social network in North America. It has more recently been surpassed by Facebook.[7] Cases involving Myspace often involve obtaining evidence against sexual predators, proving gang affiliation for gangsters who relied on its partial anonymity to brag about their exploits, as well as, recently, some reliance in civil cases. Legal issues arise regarding authentication because users may create accounts under any pseudonym. Until recently, most profiles were public and available to anyone, so jurisprudence involved proving authorship author rather than trying to undercover potentially damaging posts. Myspace is referenced more in American case law than in Canada..
Facebook allows users to create user profiles and discourages anonymous posts. Launched in 2004, it was originally confined to college campuses and required all users to have an academic email account. Its terms of service required users to use a real name and have an actual photograph. Recently, the terms of service have been relaxed to allow anyone with an email address to create an account, although Facebook still reserves the right to disallow fake names. Facebook’s most popular feature has been its “wall” in which users are encouraged to share personal updates, videos and photographs with individuals they have added as friends. When a user logs on, they are asked, “what is on your mind?” and can view new pictures or posts that their friends have posted. As users need to approve their friends and can control who accesses their profiles, there is a greater sense of privacy, and perhaps as a result there is a greater instinct for users to brag about their daily adventures or to share intimate thoughts or personal photos that they would perhaps otherwise not publically share. As a result, Facebook is becoming increasingly predominant in both criminal and civil trials where a party seeks to introduce evidence that is damaging to its adversary. In the criminal context, we see users convicted of uttering threats, uploading incriminating pictures that link them to a crime scene, or posting comments that may undermine their credibility. In family courts, evidence retrieved from Facebook is being used to challenge the parenting ability of partners in custody disputes. In civil trials and injury lawsuits, defendants are increasingly using discovery motions against plaintiffs to uncover Facebook photographs that may undermine the extent of claims.
Facebook is by far the most used social network referenced in Canadian courts. As of the first half of 2011, 302 cases and 86 tribunal decisions on CanLii mention Facebook. Myspace has been referenced relatively little in comparison and is mentioned in just 14 cases in Canada. Other social networks receive equally few references in Canada: Youtube occurs 38 times; LinkedIn receives 4 mentions; Flickr appears twice; Nexopia is listed in 15 cases. These statistics do not always reflect the kind of evidence obtained, as social networks are becoming so common in everyday life that many cases merely have passing references, nor do they cover the unreported cases where social networking evidence has resulted in a settlement or plea bargain.
Besides Myspace and Facebook, other social networking sites occasionally produce evidence referenced in the courts. Whether they will yield useful evidence may depend on the demographics of the users as well as what information they encourage their user to share. A professional business social networking service such as LinkedIn is less likely to host vacation photographs than a site such as Facebook.
The largest social network run by a Canadian company is Nexopia, based on Alberta, and its user base is made up mainly of teenagers. The primary references in Canadian courts to this particular social network site refer to sexual predators targeting its younger user base and evidence is generally obtained as part of a larger criminal investigation.[8] Notably, because Nexopia is based in Canada, American laws that limit voluntarily disclosure by hosts of user information to law enforcement do not apply[9]. As a result, when users sign up they agree to terms that allow the company to screen for potentially illegal posts and to disclose them if necessary.
Other social networks also appeal to niche user bases or have specialized usage. Flickr, a site that allows sharing photographs online that is owned by Yahoo, is only referenced in two Canadian cases. Both cases involved child pornography and Canadian police were alerted to the photos by international authorities[10].
Twitter, a website in which individuals posts brief “tweets” and share with a broad public audience, appears less than a dozen times in Canadian case law and has not played a significant evidentiary purpose in either Canada or the United States. Although a very popular site, it does not provide picture-hosting capabilities and limits posts to 140 characters in length, providing a limited opportunity to express oneself or share potentially incriminating evidence. There have been instances of courts referring to an individual bragging about their drinking habits in Canada[11], however most users tend to post information they wish to share with the entire internet rather than a subset of online friends. Some legal discussions have arisen about illegally sharing election results in Canada,[12] and some controversy arose in the US from attempts to uncover the identities of Wikileak supporters who may have been responsible for obtaining stolen government documents.[13] Twitter is also faced with civil cases involving copyright infringement or defamation. Copyright cases generally involve linking to some other infringing material or dealing with appropriation of personality.[14]While little case law exists in regards to defamation, Twitter’s counsel recently told a forum that this area is very common for litigation and its general policy is to notify users before handing over their information.[15] Another potential area of case law arises in the UK with their use of “super injunctions” by public figures to prevent publication of embarrassing information and the difficulty on enforcing those types of orders against a US company.[16] For the most part, most Twitter accounts are completely public (although the site does have the ability to send private messages), so any discovery would involve attempting to identify the account owner and the author of posts rather than uncovering information.
As a business-oriented social network, LinkedIn, is not often referenced in Canadian jurisprudence and some courts have even purposely denied discovery of LinkedIn while granting discovery of other networks.[17] LinkedIn caters to professionals who wish to display their work history and information on the services they offer on their profile. In the US, LinkedIn postings have played a role in a small number of commercial cases. Evidentiary uses have included attempts to show that a party breached a non-competition agreements by contacting former clients,[18] establish the geographic location of witnesses with a view to establishing the proper forum for litigation[19] demonstrating work history[20] or engaging in misrepresentation.[21] A number of cases have arisen on YouTube, a popular website for sharing videos. Now owned by Google, it is one of the primary video hosting platforms and the source of many earlier cases involving copyright infringement for copying video. For lawyers concerned with copyright infringement, a whole series of case law in the US involves application of the US Digital Millennium Copyright Act[22], YouTube has been brought up in the courts regarding evidence of threats,[23] association with gang members in rap videos,[24] human rights violations involving statements about sexual orientation,[25]and even some personal injury videos where individuals appeared to be able to dance despite claiming debilitating injuries.[26] While YouTube does allow private videos, most videos are public and courts have not dealt with civil discovery motions to uncover content like they have on other sites. However, in instances where the author of the video was not readily apparent, investigators may be required to contact YouTube for evidence regarding authorship. Likewise, while YouTube is the most common video sharing site, other emerging social networks and video sharing sites, such as Ustream and BlogTV, that are devoted to real-time streaming video may eventually also find their way into court.
IV.           Introduction to evidentiary limitations and jurisdictional issues
Lawyers and courts considering the use of social networking evidence have to consider issues involving territorial jurisdiction and of the rules of evidence, such as the requirement that the probative value of evidence not be outweighed by its potentially prejudicial effect.
In many cases, users directly upload photographs and statements to their social networking accounts, and thus the useful evidence may only be available through one of these websites. Canadian evidentiary laws may apply to how courts can authorize the collection of evidence and how evidence becomes admissible in court, but as most social network companies are based in the United States, obtaining the evidence is subject to American jurisprudence, in particular federal statutes that limit what social networking companies may do with user data and under what circumstances they may be compelled to release it.
Many of the evidentiary as well as jurisdictional precedents and statutes that courts consider in social networking cases were originally established in the context of a documentary world based on paper and ink, rather than data created, stored and presented electronically. The challenge for courts is generally to remain faithful to established principle, yet interpret and apply them in a manner that is sensitive to the practical realities of the new technologies. In some cases, however, courts can or must draw guidance from statutes or rules of court that are specifically addressed to electronic formats.
The Canadian Charter[27] does not ordinarily apply to law enforcement activities committed abroad, including those conducted by Canadian officials while in other jurisdictions.[28] Although, an exception may be made if there is a violation of a binding international human rights obligation.[29] The admissibility of evidence in Canadian proceedings can take into account all the circumstances under which it was originally gathered abroad; conscriptive evidence lawfully obtained abroad contrary to Canadian standards might, for example, be excluded because its admission would breach the Charter right to a fair trial.[30] As a practical matter, in social networking cases, there will rarely be much significance to the legal intricacies of applying Canadian standards, including those contained in Charter and privacy statutes to gathering evidence in the United States. The Bills of Rights[31], both federal and state, in the United States provides protection against unreasonable search and seizures, and statutory and common law protection for users of social networks against release of personal information are in many respects as strong as those provided by the laws applicable in Canada.
V.             Statutes and Legislative frameworks
A.   The Stored Communications Act
Most of the major social networking companies are located in the United States. The major ones such as Facebook, Myspace, and YouTube are headquartered in California and store information there. Any attempt by a Canadian litigant to compel the release of information from a social network requires the application of American state and federal laws.
The Stored Communications Act (SCA) is pervasively important in this respect.[32] Enacted by the US Congress in 1986 prior to the popularization of the internet, the act was initially designed to regulate telecommunications carriers and provide subscribers to their services protection from unauthorized access to private communications. Essentially, it prevents companies that offer what is known as “electronic communication services” or “remote computing services” from voluntarily handing over personal communications and content, including photographs, statements, chat messages, or profiles to third parties without the subscriber’s consent. A limited number of exceptions are made under section 2702, in which law enforcement can obtain the contents of transmission in an emergency involving danger of death or serious physical injury, or with a valid search warrant issued based on reasonable grounds[33]. Exceptions are also made to non-content based requests such as subscriber information, which may be voluntarily released.[34]
In Crispin v Christian Audiger[35], a California court confirmed that the SCA applies to all pictures, posts, messages and communications on Facebook and other social networks when privacy settings are available. The court quashed a “subpoena duces tecum” issued by the defendant to Facebook and Myspace to hand over private information or messages from the plaintiff’s account. This means that an accused in a criminal trial will also have no access to obtain private social networking material from potential witnesses as the exceptions are only available to government authorities. The only information that a social network may hand over to a non-governmental authority without consent is basic subscriber details. This includes, for example, what email an account was registered under, when a user started their account, and what internet protocol (IP) address was used to create an account. An IP address is a 12 digit identifying number that is assigned by an internet service provider (ISP) such as a telephone or cable company to a computer when it accesses the internet and can be traced back to find the physical location where a computer accessed the internet. Basic subscriber information may be released by a social network to a third party with a valid subpoena domesticated in California (or wherever the social network is located) and issues to the companies registered agents.
While the SCA does not affect publicly posted content, which litigators or investigators can capture on their own, it means that any private content required for a civil trial will have to be produced by the party who has access to it. In the US, any attempt to obtain access to private information on a social network without the authorization of a valid search warrant, emergency exemption, or the consent of the account owner renders an individual liable to tort action. There are two possible torts: a civil tort under the SCA itself or an independent tort of computer trespass.[36] In Canada, however, there has been a case where a court admitted unauthorized content accessed by a spouse who knew her ex-husband’s password without any reprimand from the court.[37] Later in this paper, we will cover how civil litigators have been able to use discovery procedures to compel adversaries to provide consent forms or to hand over social networking evidence.
B.    General Evidentiary Statutes and Rules of Procedures
In addition to American federal laws that limit how social networks can release private content, most jurisdictions have general evidentiary laws that are relevant to admitting and using social networking evidence. These include federal evidentiary rules that deal with criminal evidence in Canada, provincial rules of civil procedure that determine admissibility and procedures in civil trials, and a variety of American evidentiary rules at both the federal and state level depending on the nature of the proceeding.
 
One of the challenges is that many of the rules of evidence were adopted before social networks became commonplace. While this has provided no real barrier for using social media evidence, in some cases there was been attempts to define material found on websites as writing or documents. Generally, both Canadian and American evidentiary laws require evidence to be authenticated and this applies to evidence in both criminal and civil trials. US rules on admissibility tend not to differ between electronic evidence and traditional evidence, and so electronic evidence is often admitted as writing.
For instance, in California, a court in dealing with a photograph from a social networking site utilized laws surrounding ‘writing’: A photograph is a “writing” and “[a]uthentication of a writing is required before it may be received in evidence.”[38] This reflects the Unites States Federal Rules of Evidence regarding admissibility, as well as similar rules in other states:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.[39]
In Canada, the federal rules of evidence that regulate criminal proceedings have a more specific recognition of electronic evidence as part of the recommendation of the Uniform Law Conference of Canada.[40] The Canada Evidence Act was modernized as part of PIPEDA[41] to acknowledge electronic documents. Section 31.1-31.5 creates a series of more general guideline as to how electronic documents can be admitted.
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.
Provincial evidentiary rules, used in civil trial across Canada, have also adopted the Uniform Law Conference recommendations and have similar recognition of admissibility of electronic documents.[42]
The other area of legislative or statutory frameworks that apply to social networking affect what evidence is discoverable in civil trials. We will discuss this later, along with how the courts have applied discovery rules in regards to social networking evidence in civil trial.
Each province has its own general procedures for how discovery is handled. For the most part, traditional civil laws of discovery apply and social networking profiles and other electronic evidence are handled like any other document:
The pages at a social networking site or internet site including a Facebook page is a document for the purpose of discovery and should be listed in a party's affidavit of documents, if relevant ("relating to any matter in issue"). [43]
The statutes require voluntary disclosure of any documents that are relevant, and provide a great deal of judicial discretion when voluntary compliance is not forthcoming or where there are disputes over what exactly is relevant. Most provinces leave the discovery obligations fairly broad. For example, Manitoba’s Court of Queen’s Bench Rules[44] require:
30.02(1) Every relevant document in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in this Rule, whether or not privilege is claimed in respect of the document.
And it provides a broad remedy if a party fails to disclose a potentially detrimental document:
30.08(1) b. if the document is not favourable to the party's case, the court may make such order as is just.
Under certain circumstances, courts could also resort to interim preservation orders rules that authorize individuals to enter property to obtain evidence. [45] (Such as Rule 45.01(1) in Manitoba[46] or Rule 45.01 in Ontario.[47])
Ontario has a similar statutory requirement in the Rules of Civil Procedure[48] that does not differentiate between regular discovery procedures and those that relate to social media. However, another rule does require parties to consult with the “Sedona Canada Principle Addressing Electronic Discovery” before preparing a discovery plan.[49] The Sedona Canada Principle[50] is a framework for managing costs and timeframes in larger electronic discovery, especially for dealing with large discovery requests beyond the scope of those handled in a typical case involving social media evidence. While not mandated by statute, Manitoba’s Court of Queen’s bench has recently released a practice directive that also refers to the Sedona Principles.[51] However, these guidelines are again more appropriate to commercial litigation where one party may be disclosing thousands of pages of documents and do not provide guidance to the evidentiary considerations relevant to social networks which we will discuss later such as expectation or privacy or whether material is relevant.
British Columbia’s statutes similarly require a broad disclosure of documents in its Supreme Court Civil Rules,[52] although it did not significantly change the rules for electronically stored information when it updated its civil rules in 2010. (The court has released a general practice direction to deal with electronic documents geared for larger corporate suits.[53]) The rule provides a broad disclosure requirement, while providing the court with the ability to screen any contentious documents for privilege:
Rule 7-1 .(20) If, on an application for production of a document, production is objected to on the grounds of privilege, the court may inspect the document for the purpose of deciding the validity of the objection.
BC’s rules also provide a broad judicial discretion to order documents, which would include social networking materials, to be available for copying for the opposing party:
Rule 7-1 (17) The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it considers appropriate.
Nova Scotia on the other has completely rewritten their civil procedure rules to extensively codify electronic discovery rules under a comprehensive Rule 16.[54] The changes were written by the judiciary as per the judiciary act, and ratified by the House of Assembly.[55] For example, these rules cover in depth the need to preserve relevant evidence including externally hosted database systems that would be applicable to social networking:
Rule 16.02 (2) A party who becomes aware that a proceeding is to be defended or contested, must take measures to preserve relevant electronic information that is of one of the following kinds:
(a)    it is readily identifiable in a computer, or on a storage medium, the party actually possesses;
(b)    it is accessible by the party to the exclusion of another party, such as information in a database the party accesses by password on a computer the party does not actually possess.
Nova Scotia’s civil rules also provide judges with guidance on how to deal with a party’s failure to disclose documents and situations where judges may subsequently order disclosure:
Rule 14.13(3) –
A judge who orders a person to provide access to an original source of relevant electronic information may include in the order terms under which the access is to be exercised, including terms on any of the following:
(a)    a requirement that a person assist the party in obtaining temporary access to the source;
(b)    permission for a person to take temporary control of a computer, part of a computer, or a storage medium;
(c)    appointment of an independent person to exercise the access;
(d)    appointment of a lawyer to advise the independent person and supervise the access;
(e)    payment of the independent person and the person’s lawyer;
(f)     protection of privileged information that may be found when the access is exercised;
(g)    protection of the privacy of irrelevant information that may be found when the access is exercised;
(h)    identification and disclosure of relevant information, or information that could lead to relevant information;
(i)     reporting to the other party on relevant electronic information found during the access.
 
This extensive codification does not necessarily provide greater access to social networking information, as courts in Canada and the US have taken a broad variety of approaches to overseeing the disclosure and admission of social networking evidence under current rules, which we will cover later. Other provinces, however, would be prudent to emulate Nova Scotia’s rules as they do provide greater clarity for courts in issuing orders and recognize the unique challenges of social networks and other electronic evidence. Particularly, the reference to using independent third parties to supervise access and taking appropriate steps to protecting the privacy of irrelevant information. Most of the cases discussed later focus on what evidence is discoverable, and courts have generally ruled that privacy and the expectation of privacy are subverted by the truth seeking process. Additionally, as social networks evidence becomes more common in court, formalized court rules provide greater certainty for litigants (particularly in non-commercial litigation) about what they may expect in the discovery process.
VI.           Evidentiary Burdens and Uses in Criminal Proceedings
Obtaining evidence in a criminal proceeding is standardized for law enforcement agents seeking to acquire social network evidence. The larger social networks, such as Facebook and MySpace, have internal departments dedicated to handling law enforcement requests and have handbooks available to law enforcement with sample forms and dedicated contact lines.[56] Social networks and internet companies are obliged under American law to release profile information directly to law enforcement once a court order is obtained. With proper authorization, social networks in the United States may be compelled to provide law enforcement with subscriber information or with the contents of user’s account. They may also be mandated to backup a preservation of a users’ account when presented with a subpoena or search warrant. Unlike the United States, Canada does not require that website operators located in Canada preserve material (when requested) before a search warrant is issued, although the Department of Justice has circulated a discussion paper discussing potential law changes here.[57] However, since most social networks are located in the United States, law enforcement may send a request to a social network to hold information while they request a search warrant.
Law enforcement is not granted unmitigated access to a subscriber’s account. They are prevented, as discussed earlier, from receiving content information without a valid search order under the United States’ Stored Communication Act [SCA][58] and then “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”[59] Social networks will recognize a foreign subpoena, discussed below, for basic subscriber information, but require foreign officials to directly seek an American issued search warrant.
Access to subscriber records in the United States, which includes access to the name of the account owner, the account owner’s e-mail address, the date the account was created, and the IP address used to access the account, requires a court order or an administrative subpoena under section 2703 of the SCA. A production order issued in Canada issued under section 487.012[60] should suffice for the purpose of the US requirement.[61] The burden to get an order is fairly low in both the United States and Canada. Recently, a US court denied a request by Twitter and three of its subscribers to require a higher standard of proof before allowing release of this basic information. This case related to the release of confidential government documents by the WikiLeaks website. The Virginia court found that law enforcement or a government entity must show that the record sought without consent is “relevant and material” to a criminal case and that the “requirement of a higher probable cause standard for non-content information voluntarily released to a third party would needlessly hamper an investigation.”[62] The standard in Canada for obtaining a production order is that there are reasonable grounds to believe an offence has been, or is suspected to have been, committed, and that the document will afford evidence respecting the commission of an offence. When requesting material, a law enforcement agency should be clear on which data they seek and provide the user account number.
There is a provision in the event of an emergency where an individual’s safety may be at stake permitting social networking companies to release information without a court order under theSCA.[63] In the United States, a court has found evidence obtained via an emergency request admissible, as subscriber information does not have a high expectation of privacy.[64]
Any attempt to find useful information from subscriber records regarding a social networking site will likely require more than one production order to prove an account was created or accessed by an individual. The social networking sites will generally only require an email address to create an account and store an IP address. A second production order will be required from an ISP to match the IP address with a physical address. For instance, in R v Weavers[65], police investigating online threats sent a production order to Myspace to obtain an IP address, and from this IP address they tracked the account to Bell Canada, from whom they obtained a physical location. Any attempt to obtain an IP address should note the exact time a user was suspected to log in, as often they are issued temporarily and may be reassigned to other subscribers. Often this information may be used to obtain a physical search warrant for the location.
Content may only be accessed with a valid search warrant, which would require probable cause and reasonable grounds. The grounds required under section 487 of the Criminal Code[66] to issue a search warrant in Canada should be sufficient to also be recognized in the United States. The request should include sufficient details as to what the grounds are for the request and what specific information is being requested. With the exception of good-faith emergency requests, Canadian law enforcement will be required to obtain an enforceable American search warrant. This is done under the Canada Mutual Legal Assistance on Criminal Matters Treaty with the United States.[67] An investigative request with reasonable grounds and sufficient detail should be provided to the International Assistance Group in the Canadian Department of Justice, the assigned contact for cross border searches. The International Assistance Group, in turn, works with its US counterpart to obtain the appropriate warrant.[68]
Companies such as Facebook have dedicated resources to handle valid search warrant requests. When a valid request is made and meets the proper legal burden, investigators may be provided with a file containing a large amount of personal information, photos, private messages or other information from a user’s account. There have been cases where representatives from a social networking company have testified at trial as to the contents of a social networking account,[69] although this does not appear to be a common occurence.
In criminal cases, the ability to access information for investigative process is limited to law enforcement and prosecution, as the SCA prevents social networking companies from disclosing any content or personal posts or photos to any non-governmental entity. American courts appear to reject attempts by defendants to subpoena information directly from a social network. While not binding, a California appellant court in People v Yaqoob denied a subpoena request upon Myspace by the defence in an attempted rape case on the basis that such a request would violate US federal law.[70] Arguably, a defendant could attempt to compel witnesses in Canada to provide a copy of their own Facebook account under a court ordered subpoena under section 700(1) of the Criminal Code[71]. However, there has been no case law on whether this has been tried. There have been examples where police have obtained records through the consent of a witness. In R v Spackman[72], for example, police obtained chat transcripts from Facebook through the consent of a witness in a murder case, although the court later excluded the chats due to suspicions that the witness was not truthful.
VII.         Admitting Social Networking Evidence in a Criminal Trial
While a production order or a search warrant may provide potential evidence, the body of case law in Canada and the US surrounds when the evidence is admissible. The main considerations are whether the evidence can be authenticated, how it can be used, and whether the evidence proves to be more probative that prejudicial.
A.    Authentication
In both Canada and the United States, evidence such as photographs or documents must be authenticated before they can be admitted. The person introducing evidence must demonstrate to the court that the evidence is the untampered product of the the particular person to which a party wishes to attribute authorship. When evidence allegedly comes from a social network and exists electronically, the need to authenticate increases as it becomes easier to manipulate. If a prosecutor fails to demonstrate that a photo has not been doctored or that a Facebook profile was actually created by the person whose name was on the account, a court may end up acquitting a suspect.
Assumptions about who created an account can open the door to defence lawyers and lead to an acquittal. This is hardly an academic issue. There have been cases where individuals have created fake accounts, or broken into a home network in an attempt to frame their neighbours. In People v Heeter[73], a woman was convicted of trying to submit a false document to court after she created an account under her partner’s ex-wife’s name and sent fake emails in an attempt to make it look like the woman was harassing her. Most social networking sites are accessed freely and do not require verification that a person creating an account is doing so under their own name. Even if a social networking site captures an IP address or the user or creator of an account, this information may not be conclusive. For instance, in US v Ardolf,[74] a man was convicted of hacking into his neighbour’s wireless signal in order to send fake threats to politicians and emails that contained child porn. The defendant had used software available online that allowed him to break the password encryption on the router. This was only discovered when the neighbour, a lawyer, had his company’s security expert install a special piece of hardware which allowed him to monitor all computers that accessed his network. Most home network security features are rudimentary and can be bypassed or hacked with some technical knowledge.
In Canada, because the broad language of admissibility provided by the Federal Evidence Act[75] allows authentication by “respect of any standard”, judicial decisions regarding admissibility require rigid evidentiary rules. In the past, courts relied heavily on the “best evidence rule”, however with modern technology this rule has been rendered obsolete and the question is more about the weight courts should put on the evidence.[76] This means that it is often up to the judge or jury to determine if the evidence is sufficient in its entirety to obtain a conviction. For instance, in R v Harris[77], a 23 year old man was convicted of attempting to lure a 14 year old into having sexual intercourse. The court looked at the totality of evidence to prove that sexually inviting messages were sent from an account operated by the accused. The prosecution presented evidence that the account had the name of accused on it and a picture of his dog. The brother of the accused testified as to the ownership of the account. Some of the messages contained personal details only known to the accused and the victim. Forensic software was run on the accused’s computer to reveal some of the chat transcripts. The defence raised questions about whether someone else may have had access to the computer, but the court found the evidence was sufficient to prove the accused’s own authorship.
Canadian jurisprudence has not discussed in detail whether a minimum level of authentication should exist before social networking evidence is admissible and nor has it analyzed at length the meaning of “any standard” in our evidentiary rules. A number of American decisions have provided a clearer picture as to how social networking evidence should be authenticated. These cases are useful in determining how courts in both countries should approach authentication and outline important considerations that should take place before social networking evidence is admitted in a trial.
The first consideration when handling social media evidence is to have an expert available who understands how a social networking account is created, or who can testify that a picture has likely not been manipulated. This may be a police officer trained in social networking, or an independent IT consultant.
In People v Beckley[78], a California court discussing a photograph taken from Myspace and used in a murder trial emphasized the importance of having an expert able to authenticate the subject matter of a photo if there is not an independent witness to testify to its accuracy. The court also underscored that in the age of computers, “it does not always take skill, experience, or even cognizance to alter a digital photo.”[79] Widely available computer applications such as Adobe Photoshop allow users to manipulate photographs, combine images, remove potentially important details in a way that may be undistinguishable to the average eye.
The second consideration is the danger of making assumptions about the author of an email or creator of an account without adequate evidence; it may be unsafe, for example, to rely on the mere fact that an individual owns an account, or that his name or password has been used. In Commonwealth v Purdy[80], the court stated:
Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an e-mail or a social networking Web site such as Facebook or Myspace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.
The court stated that there must be a certain threshold created by a separate “confirming circumstance.”[81] This confirmation could be made by way of physical evidence showing the account or files on an individual’s computer, or through the manner in which the defendant characterized him or herself. The confirming circumstances can be described in two ways. The first is physical authentication and the second is content-based authentication.
Wherever possible, physical authentication that a suspect created an account should be sought. This may require a physical warrant to search the suspect’s computer and may require using some form of software to forensically scan the computer as was done in R v Weavers[82] or Commonwealth v Purdy[83]. Often, a web browser such as Internet Explorer will leave logs on the computer containing remnants of chats or messages. To remove doubt of a conviction, investigators have even gone as far as to make an arrest when they knew the accused was logged into the account while at work.[84]
The other method of authentication is to rely on the specific contents of an account or message for personal details or language that may be distinct to a suspect. This may be a highly subjective process and should be used with care. While not binding, Morris J of a Texas appeal court discussed content authentication:
“The inherent nature of social networking websites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal backgrounds, and lifestyles. This type of individualization is significant in authenticating a particular profile page as having been created by the person depicted in it. The more particular and individualized the information, the greater the support for a reasonable juror's finding that the person depicted supplied the information.” [85]
The court found that references to events surrounding a murder and posts describing the accused being put on an electronic monitoring program provided sufficient information for a jury to decide whether the account belonged to the accused.
The presence of any information that could be known only to the accused or victim may be sufficient to at least provide authentication of evidence for the purpose of admissibility. The trier of fact will still need to decide whether this is conclusive. A number of unofficial opinions demonstrate how courts have admitted evidence based on distinctive circumstantial details. In People v Fielding[86], the court found that chat transcripts containing information the accused and victim discussed in person provided sufficient proximity to allow the transcripts to be introduced. Any alleged discrepancies were to go to the weight, or importance, placed on them. In People v Goins[87], the appeals court found the trial judge wrongly excluded a Myspace page that could only have been known to the victim and accused. The defendant had wished to introduce it and the appeals court recognized that it contained “descriptive details of the assault that fit within what a reasonable person would consider to be “distinctive content”[88].
The importance of collaborating evidence and proper authentication should not be understated. Basic content such as a photograph of an accused or a basic profile on its own are insufficient: they leave the door open for reasonable doubt. In the United States, a number of cases have been overturned because of the role speculation played.
One of the key cases in the United States is Griffin v State.[89] The Maryland Court of Appeal overturned a murder conviction because a trial court allowed a Myspace account to be admitted without authenticating it. The lead investigator printed out a copy of the profile that they assumed belonged to the girlfriend of the suspect and tried to use the photo of the girlfriend and her birth date as authentication. The court ruled that the police should have attempted to introduce more confirming evidence such as cookies or physical authentication.
Shared computers with potentially multiple users can also raise problems. In R v Johnson[90], a Canadian court found the accused not guilty of sexual trafficking in part because there were questions about whether it was the accused or his girlfriend who was accessing and posting to a Facebook account. In any case, where key evidence exists as a result of online activities, law enforcement will need to collect sufficient evidence to infer that the accused was in fact the user of the computer. Many web browsers save passwords on a computer so that anyone with physical access to a computer may log onto an account and make posts without the consent of the user. This is particularly problematic in offices where a computer may be in an unsecure environment or in a residence where parents, roommates or children may have access to the same computer.
Where possible, enough confirming evidence should be gathered to ensure the judge or jury can sufficiently infer that there is no reasonable doubt or alternative explanation as to who created or used a social networking account.
B.    Determining Admissibility
When a criminal court is dealing with social networking evidence, they are primarily dealing with either incriminating statements in posts, messages, chat transcripts or photographs that reveal some insight into the crime. Sometimes, it may be the defence that attempts to bring in social networking evidence to impeach the credibility of a witness. When it is the defence attempting to introduce evidence, the main issue is often whether the evidence is relevant and probative and whether there is any rules barring the particular nature of the questioning. With the prosecution, the court will often weigh whether the evidence is more probative than prejudicial, which serves to prevent inflammatory statements or embarrassing photographs from distracting the court.
C.    Challenging the credibility of witnesses
Case law regarding attempts by the defence to introduce social networking evidence is most often discussed in cases involving sexual assault to speak to the credibility of the complainant. It occasionally arises as well in cases where the accused raises a self defence claim.
In sexual assault cases, courts in Canada are limited by Section 277 of the Criminal Code[91] that limits “evidence of sexual reputation, whether general or specific” in regards to the complainant. Some of the best examples of what courts consider evidence of sexual reputation come from the US, where similar rules require exclusion of past sexual conduct as evidence. In the unreported decision People v Greenspan[92], the court denied a request by the defence to introduce Facebook photos of the complainant posing in a sexually suggestive manner in Las Vegas on the basis that they could be evidence of sexual conduct. In State v Corwin[93], the court prevented the defence from introducing Facebook posts by the complainant in which she bragged about getting drunk, having sexual encounters, and waking up with bruises. The judge ruled that “[e]vidence that [the] Victim had been bruised on another occasion when intoxicated neither proves nor disproves that her bruises on the day of the attempted rape were from an alcohol related accident, instead of Appellant's violent actions toward her.[94]” Another court did not allow an accused to admit statements by the complainant that she was happy four days after an assault, because it had little probative value.[95]
Similar limitations may occur in general assault cases. In R v Jilg[96], a British Columbian appeal court did not allow the defendant to introduce photographs from the complainant’s Facebook page to challenge her testimony as to the extent of her injuries after being the victim of domestic violence at the hands of her former partner. The defendant had wished to use Facebook posts from after the incident to minimize the severity of the injuries. The court there found the evidence was not probative of the danger the accused presented to society. In State v Makue[97], a Hawaiian court found that Facebook photos of a victim holding a beer had no relevance to whether the complainant was credible when he testified he was not drinking on the day. There was no evidence that the photograph was taken on the day of the assault. In a murder case, R v Mills[98], the court prevented the defence from introducing Myspace photos of the victim holding a firearm in making its case for self defence, since there was no evidence that the defendant was aware of the photograph. However, if the accused had been aware of the photograph, it would have been admissible to establish a reasonable apprehension of harm.
Courts have allowed the defence to introduce Facebook profile evidence where there is particular relevance to the credibility of a witness or to the defendant’s perception of the events. In R v Garroway[99], the defence was permitted to introduce evidence that a 13 year old complainant in a sexual interference case had lied about her age by listing it as 18 on her Facebook profile. The defendant was acquitted by the Ontario court, who found there was reasonable doubt as to whether the accused ought to have known the girls’ age, particularly since he was new to Canada and testified he did not know people sometimes lie about their age. Similarly, an appellant court in the United States overturned a conviction for statutory rape of a youth under 14 when the trial judge did not permit the jury to consider applying a lesser charge as is available for older children after the complainant listed her age as 16 on her Myspace account.[100]
Any attempt to challenge the credibility of a witness or a complainant using social networking photographs or statements should be done while a witness is on the stand. It is important that a witness is given a chance to explain any apparent contradictions or potential accusations of perjury. In R v Gardiner,[101]a New Brunswick trial judge forbid the defence from introducing a witness who was prepared to testify that the complainant admitted to perjuring herself in phone conversation and corroborating Facebook messages because they did not fully raise the issue while the complainant was testifying. Fortunately for the accused, the Court of Appeal overturned the case on the basis that the defence ineffectively defended Mr. Gardiner. (Although, the appeals court also noted that the judge had some discretion to reconsider the evidence, even if the defence failed to exercise reasonable and professional judgment.)
It is common for the prosecution to challenge the credibility of a defendant, who chooses to testify, using their social networking profile. Character evidence should not be used on it’s own, but may be used to rebut the credibility of an accused if they choose to testify.[102] In R v Telford[103], an accused man’s Facebook message to his girlfriend that “I bet you don’t want me to see you again” was used to challenge the credibility of his versions of events in which he denied assaulting her. Some courts in the US have allowed evidence that is highly prejudicial, and otherwise inadmissible to be allowed when a defendant testifies about their own character. For instance, in Hall v State[104], the court allowed the prosecution to question a woman charged with obstructing justice about her Facebook profile. She claimed she was an unwilling participant in disposing a body and the prosecution pointed out that she listed a number of horror movies and novels amongst her interests and that her summer plans included ‘I should really be more of a horrific person. Its in the works.’ Likewise, a court in Indiana allowed the prosecution to question a father who was accused of murdering his child on statements made on his Myspace profile.[105] In those statements, he claimed to be an outlaw and “do it and get away”. The father, who admitted to violently assaulting his daughter, attempted to claim on the stand that he was reckless and should be tried with manslaughter instead of murder. The court found that since the father made his character a central issue by testifying, evidence of his past statements on his profile were admissible, whereas evidence of past criminal actions would not have been.
D.   Probative Versus Prejudicial Evidence
For courts determining whether to admit potentially incriminating evidence found on a social networking website, one of the central considerations for a judge is ensuring inflammatory material with little relation to a criminal matter does not find its way to the jury. A judge must decide whether material genuinely adds to the case or legal issue and is probative, or whether showing it a jury will potentially introduce prejudice. Fairness and integrity of the legal system require that sufficient proof be presented and necessitate that immature statements or inappropriate pictures do not distract the jury or create any preconceptions of guilt. Even in a case tried without a jury, the judge should avoid any misleading character evidence unless it is deemed essential to the facts of the case. This is important based on the nature of social networking. Users of Facebook or Myspace often engage in behaviour that may be seen as ridiculous by traditional societal standards: posting lewd pictures, bragging about how intoxicated an individual has become, making generally impulsive statements or even making false or highly exaggerated claims regarding behaviour that may in fact be far removed from the claim. Some users go out of their way to portray an exaggerated profile. However, with the exception of some family law cases where one’s behavior may be applicable to their ability to raise children, it is generally not the court or jury’s role to become the judge of appropriate taste.
When admitting social networking profiles and pages, a judge may determine that to maintain fairness, some or all posts or photos should be excluded and that potential evidence must be shown in a particular way. In R v Sinclair,[106] the accused in an Ontario murder trial who claimed self defence wanted to demonstrate that one of the prosecution’s witnesses and the accused were in a gang by showing a rap video downloaded from YouTube. O’Marra J ruled that the violent music and lyrics would be overly prejudicial, but allowed the admissibility of still photos captured from the video to challenge the whether the witness was in a gang with the deceased:
The YouTube tribute video is not evidence of reputation or proof of previous acts of violence. There is no probative value to it to prove a disposition for violence on the part of the deceased capable of supporting the probability that the deceased was the aggressor. However, the defendant should not be prevented from making use of the above described photographs depicted in the video in cross-examin[ation] ...[107]
Similarly, a Texas Court admitted a Myspace video in a murder trial of the accused brandishing a firearm because it found the video probative, but did not permit the audio to be presented.[108] An appeal court reviewing the decision found that while a video showing a suspect with a firearm sometime before a crime may be prejudicial and inadmissible on its own, it had probative value because a witness testified the defendant used the same handgun used in the shooting and it demonstrated that the defendant had access to the specific firearm. A Georgia court found that a YouTube video with violent lyrics about gang lifestyle written by an acquaintance of a suspect was not admissible as it was both hearsay and unfairly prejudicial.[109]
Courts have been reluctant to admit photographs from a suspect’s social networking profile unless they have a highly probative value. Many of the time they are inadmissible character evidence. InU.S. v Phaknikone,[110] an appeals court found that photographs from a Myspace profile under the user name ‘trigga’ of an accused brandishing a firearm was highly prejudicial and not probative of whether an accused robbed a bank, nor was it relevant to any detail from the robbery and thus it had been wrongfully admitted. The trial court had disallowed photographs of the accused posing with a child and a firearm, but had allowed other photographs of the suspect with a firearm. The appeal court also outlined the evidentiary test for admissibility of evidence in a US federal court.
First, the evidence must be relevant to an issue other than the defendant's character. Second, as part of the relevance analysis, there must be sufficient proof so that a jury could find that the defendant committed the extrinsic act. Third, the probative value of the evidence must not be “substantially outweighed by its undue prejudice.[111]
Otherwise prejudicial evidence may be admissible only under certain conditions. In US v Drummond[112], a court did not allow the prosecution to admit photographs from Myspace of an accused drug dealer posing with large amounts of cash and a gun. This was despite the accused having no job or legal income source. The court found that it would be prejudicial for a jury to convict him because he looked like a drug dealer. However, the court mentioned that if the prosecution could find witnesses to testify that the accused had large amounts of cash and the defendant denied this, then “it is possible that the relevance of the photos could outweigh any unfair prejudice.”[113] The probative value of evidence increases when the defendant takes the stand and provides contradictory testimony.
On the other hand, sometimes social networking photographs or profiles can be highly probative. In R v Smith,[114] a youth was convicted of attempted murder in which Facebook pictures played a strong role in obtaining a conviction and affected the sentencing. The youth, who had a troubled past, depicted himself on his Facebook as “SoulJa” and had his profile picture set depicting himself wearing a hat and with a bandana over his face. Judge Campbell found this to be very relevant:
The person who shot Michael Patriquen was a black male wearing a camouflage bandana covering his face and a dark baseball cap pulled down to his eyes. That description bears a striking similarity to the pictures of M.C.S. posted on Facebook, where he is described as S.[115]
The profile picture was also complimented with other circumstantial evidence from Facebook. The suspect’s nickname on Facebook matched messages found on a cell phone in a stolen vehicle recovered nearby (which belonged to the suspect’s grandfather). Other Facebook evidence showed that a jacket worn in the shooting and found in the vehicle was the same as the defendant wore in other pictures he uploaded to Facebook. Judge Campbell also referred to the Facebook profile in sentencing Smith as an adult, describing his profile picture as “someone who wants to portray an arrogantly sinister gangster image.”[116] The judge’s statements show that a photograph may sometimes be both highly probative and thus admissible, such as depicting the clothing used in a crime, despite that it may be potentially prejudicial by presenting an unflattering image.
Even highly prejudicial photos or inflammatory photos may occasionally have a legitimate purpose in a case. In Williamson v State[117], an appellant court affirmed the inclusion of photographs of the accused in an assault and robbery case committed by a gang of youths. The court found the photos were relevant to show the girls were acting in concert with each other. Although the court recognized that even relevant photographs should be excluded if they are overly prejudicial, it is up to the judge consider all factor:
The mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. […] Even the most gruesome photographs may be admissible if they assist the trier of fact by shedding light on some issue, proving a necessary element of the case, enabling a witness to testify more effectively, corroborating testimony, or enabling jurors to better understand the testimony.[118]
E.    Determining Weight and Context of Evidence
While it is up to the Judge to determine whether evidence can be admitted or not in a criminal proceeding, it is up to the trier of fact, the jury or the judge, to assess the weight or believability of the evidence. While there have been cases of false confessions when a suspect makes statements to a police, courts should acknowledge that what individuals say on an online chat forum or posting to a social network has a greater likelihood of being exaggerated or untrue. Shielded behind a computer, individuals may say things that they may not say in person or they may be attempting to brag to their connections. The context of a post, image, or message may not always be clear. A photograph or a video may not reveal the entire story and, similarly, posts may be taken out of context.
Some Canadian courts have assumed that incriminating statements made online should be considered truthful. In R v Tserkassow[119], a man was convicted of assaulting another man at a gay bar. Part of the conviction was secured through an eyewitness account, but the accused’s self-incriminating statement on Facebook was also used in convicting him. The prosecution had a witness testify that the accused bragged about “supermanning a fag or a fairy” in one of his status updates. The judge rejected the accused’s statement that he lied, determining that “[c]ommon sense and reasonableness suggest that one would not post such a statement for those reasons where the statement is untrue.”[120]
Likewise, in a tax dispute case, a court rejected a salon worker’s contention that his employment history contained inaccurate information:
Mr. Hall described himself on Facebook as a self-employed hair colour specialist. Everything else about him on his Facebook info page he says is true. This is his own description of his work status made voluntarily, describing his work during the period he worked at the appellant's salon. It was made in a setting where nothing seemed to turn on it. Though he now says it alone was untrue and dishonest, he cannot explain why this would be the one thing he would choose to lie about on Facebook regarding his personal information.[121]
Other courts have approached incriminating social networking statements with a more skeptical approach, realizing that there is a need to evaluate the context of a post. This has surfaced in cases where individuals are accused of making threats, and they contend they were blowing off anger and frustration. In R v Lee,[122] the defendant was acquitted of making death threats. The judge was unsure of the context of certain statements and remarked that the format of Facebook, “diminishes the seriousness that can be attached to the words.”[123] In R v Sather, the judge recognized an expert witness who testified:
…people who profile themselves embellish their character.  They deliberately say provocative things to elicit a response from their Facebook “friends”.  In a sense they construct an alternate persona.[124]
Even if an individuals’ posts are genuine and serious, courts should be cautious when it comes to understanding the context of videos, photographs, posts, and messages. In R v Huber,[125] a judge downplayed a video that was posted on YouTube because of its limited context. This case became notorious after a YouTube video of a black man fending off three white attacker in a small British Columbia community became widespread. The judge warned of the limited weight that often should be put on videos posted online:
But the Youtube segment is misleading. To view it out of context is akin to walking into the middle of a movie. At that stage, characters have already formed, the storyline established, and the plot well along. So it is in the case at Bar.[126]
Statements themselves or messages must also ensure they are put in an appropriate context. Text messages or private communications can especially be impulsive and language can reflect an individual’s personality or a variety of unknown factors. In R v P(N), a judge in dealing with a sexual interference case between a female care giver and an underage male, acknowledged the difficulty with applying a strict legal framework to personal communications including messages, song lyrics, and personal entries:
Having done so I conclude that drawing inferences from any of this material, for or against the positions of the Crown or the defence in this case would ultimately involve me in a process of interpretive speculation. I elect not to go there. I attach no weight to this material apart from supplying interesting context.[127]
In a criminal trial especially, it is important that speculation and appropriate weight be put on communications. In R v Anderson[128], a Prince Edward Island appeal court overturned a criminal conviction of a female soccer coach who was accused of sexually exploiting a former player. The trial judge concluded that messages between the coach and the player were evidence of an inappropriate relationship. The appeals court found that the judge overlooked evidence that showed that communications between the complainant and other coaches and players contained similar language and that “the messages were nothing more than adolescent chatter.”[129]
VIII.       How Evidence Has Been Used
A.    General Incriminating Evidence
Often, as Smith[130]discussed, photographs from Facebook may be used to connect an individual to clothing worn at a crime. Recently, in a case yet to go to trial, an alleged bank robber in Detroit was identified after investigators matched clothing worn in robbery to clothing he wore on his Facebook account.[131] Sometimes, a Facebook profile picture may even serve to raise suspicion about ongoing illicit activities. In R v Huxford,[132] an Ontario detective noticed a convicted felon who was not registered to own a firearm had a profile picture of himself holding a handgun. The detective sent a friend request, arranged to sell the felon a firearm, and proceeded to arrest him when they met.
 
Facebook evidence has also been used in gaining authorization for search warrants. In US v McNamara-Harvey[133], a Pennsylvania court authorized searching the laptop of a man suspected of domestic terrorism, based in part on anti-Israel comments he made along with threats about starting a riot. In another case, a warrant was issued to search a pilot whose flight plans were suspicious and who was suspected of being a drug runner.[134] The search warrant noted that the pilot liked a “medical marijuana” group on his Facebook account. Whether a listed ‘interest’ would be admissible as probable cause in a Canadian court is unknown, though hopefully it would be insufficient. Search warrants issued on ambiguous grounds can result in evidence being rendered inadmissible on a Charter challenge. In one Canadian case[135], evidence was excluded after police reported a suspect in a robbery was wearing the same bandana in a Facebook photo as was worn during a robbery in order to obtain a warrant. However, on review, the witnesses’ description of the colour and the Facebook photo were inconsistent.
B.    Alibis / Alternative Explanations:
Defendants have also used photographs to create an alibi or raise reasonable doubt by introducing social networking evidence to their advantage. In R v Lorette,[136] a defendant accused of inappropriately touching a random woman in a bank was acquitted of sexual assault. He successfully argued that he had mistaken the woman for a former girlfriend after introducing Facebook photographs of woman who resembled the complainant. In another case[137] a man convicted of robbery mitigated his sentence slightly by using pictures from his Facebook account to show that some of the allegedly stolen jewelry was in his possession prior to the theft. This obviously is not always successful. A Quebec court rejected a man’s excuse that he was trying to meet his girlfriend on Facebook after he was found trying to sneak through an elderly woman’s back window at night.[138]
C.    Incriminating Association and Gangs:
Often, particularly in the United States where some jurisdictions make it illegal to be part of a street gang or where gang membership is used as an aggravating factor in sentencing, photographs or videos of individuals making gang hand signs or posing with other gang members have been introduced to compliment other evidence. In US v Cole[139], a Texas court admitted the defendant’s Myspace profile which showed him wearing gang colours and listing ‘drug wars’ as an interest. This was used to demonstrate that he was aware of a drug conspiracy rather than an outside contractor working as a security guard like he claimed. In US v Sirianni-Navarro[140], a court ordered a wife of a suspected drug dealer to be detained on the basis that she had photos of her husband with large amounts of cash on her Facebook page and thus likely was a knowing participant in his trafficking. In Lawrence v. State,[141] photographs of the defendant from his Myspace account showing him with gang tattoos and appearing with other members of a gang was raised as an aggravating factor in sentencing. In an attempted murder conviction, a California court admitted a video from the accused’s Myspace page in which the man raps about his rivalry with another gang who he was accused of attacking. This was used to corroborate an witness’s account.[142] In a robbery conviction, an Ohio court admitted posts in which the defendant bragged about being in a gang while excluding posts made by others.[143] In California, where being a member of a street gang is illegal, courts have blurred the line between probative evidence and character evidence by admitting otherwise prejudicial videos from YouTube and Myspace showing gang members rapping about their gang affiliations[144] or hanging out with other members of the gang to infer that a robbery was likely for a benefit of a gang.[145]
 
Social networking photographs have also been used in civil seizures in relation to criminal activity in Canada and the US. In Nova Scotia, a court ordered a house suspected of being used for trafficking drugs closed after pictures of the owner posing with gang symbols and Facebook posts referring to a local gang were admitted as evidence that the house was posing a threat to community safety.[146] A New York Court ordered a car belonging to the father of a convicted drug dealer seized after extensive photos of the son driving the car were admitted from the son’s Facebook account and the court concluded that the car belonged to the father in title only. [147]
D.   Incriminating Messages:
While some self-incriminating evidence is derived from the desire to share photographs or profile information, social networks are also becoming a ubiquitous means of communications in which users can chat online with each other or send messages. As a result, more and more personal communication are being captured and can be uncovered for use in a criminal trial. In R v Todorovic,[148] a number of Facebook messages in which a teenage girl expressed to her boyfriend that she wanted another girl killed were used to convict her of being a party to the murder. In sentencing, the judge noted that the messages were strong evidence:
What would, in another age, have shown up in personal notes exchanged between intimates, nowadays finds itself digitally recorded in cyberspace. The words, and their impact, are no less real, however.[149]
Even apologies after a crime has been committed, made over a social network, may be used as evidence. While in the past, it may have been a matter for a jury to determine whose word to believe, communications have become far more permanent. In R v F (KR),[150] the court determined an apology found in a message from a 17 year old to a 10 year old girl was indicative of guilt in a sexual assault case. Similarly, in R v G (R)[151], the court found a father’s Facebook chat message asking if he should “go away, forever” and his failure to deny his daughter’s molestation allegation was evidence of guilt.
E.    Threats / Harassment
Courts increasingly have to deal with threats and harassment commited on social networking sites. The challenge is determining what is criminal, versus what may be disturbing or inappropriate but not reasonably intended to be a threat. In many cases, individuals making the threats have underlying mental illnesses that may not be best dealt with in the criminal system.
Individuals may be simply blowing off steam by posting threatening language with no intention of acting on their threats. As mentioned earlier, the courts in Sather[152] and Lee[153]acquitted two men whose rants were made on their own Facebook accounts. In Lee, the accuwsed never directed his comments towards any individual. With Sather, there was reasonable doubt about the seriousness of the threats and whether they met the legal test, which is that the accused “must intend the words to instil fear or intimidate.”[154] Sather had made comments referring to a “tactical strike” and “firepower is obtained” when discussing the Children’s Aid Society that was preventing him from having custody of his child, however, the court found he never intended them to be communicated with any of the staff and thus were not mean to intimidate.
Courts may find a very different take on evidence if it is posted on an open social network or video-sharing site such as YouTube, or if there is any attempt to bring attention to the material. In R v B(R)[155], two youths in Ontario were convicted of public mischief after posting a video threatening the President of the United States in what was a misguided prank under a pseudonym resembling that used by another user. They were fortunate in that the judge gave them a conditional discharge with community service and a limited internet ban. In the United States, the courts have been far less lenient, especially where the subject has a criminal record or appears with firearms. An American court sentenced Rudy Villaneuva, a convicted fellow, to 79 months in jail after he recorded a drunken video which depicted him with automatic firearms making threats against law enforcement officials.[156] The court found that the video was evidence that Villaneuva made a serious threat and handed out a stiff sentence after pictures from his Myspace account were admitted that showed he had access to high capacity magazines for the firearms.
American courts appear more likely to convict individuals if they make an attempt to communicate a threatening post in an email or draw attention to it by providing a link. In US v Jeffries[157], a man was convicted of making threats after recording a song in which he sang about killing a judge. Rather than using the Canadian test as to whether a person intended the words to instill fear or intimidate as they did in Sather[158], the judge remarked:
…it is reasonably foreseeable that some persons would be concerned by the content of the Defendant's song and statements and the serious and angry way in which he delivered them and would report the matter to some authority, law enforcement entity, or court official, such as actually happened in this case. If the Defendant shouted his message to a crowd of people who had knowledge about the circumstances of his custody dispute, like his sister and potentially her friends on Facebook, the likelihood that someone would report the threat only increases.[159]
In People v Costales,[160] a California court rejected the defence’s argument that threats made on Costales’ Myspace account towards an entertainer were never intended to be communicated. The accused had sent emails to the singer with links to the webpage where the threats were made, and the court found this was sufficient to convict him. In addition to direct threats, online harassment on social networks, is also becoming increasingly common. In Placanica v State,[161]a Georgia court found a man guilty of harassment after attempting to repeatedly contact a sixteen-year old girl he had an affair with after she had ended their relationship.
Increasingly, online threats and harassment made by those with underlying mental illnesses are also becoming a problem. In some jurisdictions, these cases are treated through the medical system once it becomes evident that the unacceptable behaviour may require treatment. The Ontario Consent and Capacity Board routinely hospitalizes individuals with clear mental disorders that post death threats[162] or threatening emails[163]. In some cases, allowing these individuals access to the internet and monitoring their postings may be an effective way to determine whether treatment is working. In one case a patient at a hospital was denied release in part because he kept insisting he was a psychiatrist (when he was actually a patient) at the facility on his Facebook profile.[164]
Another form of harassment which is becoming common is creating fake accounts for the purpose of false impersonation. Courts are drawing a line between creating a website for satire or mockery and instances where the actions are intended to cause real harm. In Clear v. Superior Court,[165]a Californian court found a man guilty after he created a fake Myspace account for a pastor and made lewd statements. The court found that while it was not illegal to make a fake account, doing so for the purpose of sending embarrassing message to get the pastor fired was a felony. Depending on the circumstance and seriousness of the harassment, A similar case in Canada involving a group of unknown individuals creating a fake account under a juvenile’s name to discuss her sexual activities is being handled through a defamation lawsuit that we will address later.[166]
F.     Sentencing and Breaches of Sentences
After a conviction, social networking evidence may be introduced or considered in both determining the appropriate sentence as well as used to monitor whether the terms of a criminal’s probation are being followed. At this stage of the criminal process, the concern about wrongfully introducing prejudicial character evidence that may mislead a trier of fact is replaced with correctly evaluating a person’s character to evaluate the likelihood of reoffence and to determine necessary deterrents. As mentioned in Smith[167], the judge there found the ‘arrogantly sinister gangster’ image the youth presented on his Facebook account a factor in his decision to give the youth an adult sentence.
Social networking and online conduct may be directly related to the crime. In R v Desilva[168], a judge found a man’s decision to upload a sex video of his partner onto Facebook to require strong deterrence. Although the court recognized that the man quickly removed the video when contacted by police, Judge Robertson remarked:
In addition to the deterrence to the accused, this offence is one where general deterrence plays an enhanced role. With the proliferation of social networking sites, the opportunity to misuse such sites is significant and with devastating results to the victims; many of the impacts are significant and long lasting. This is one of those rare cases where general deterrence may actually play an enhanced and meaningful role in sentencing.[169]
In sexual solicitation cases, regardless of whether communication is followed up with physical abuse, the courts have been equally ready to condemn deviant social networking behaviour. In R v H (JJ),[170] the judge harshly scolded a 23 year old man whose Facebook conversation with his 14 year old foster child indicated an intention to meet for sexual intercourse. While the accused contended he was not planning to follow through on their illicit chats, the sentencing judge in remarked that:
“While J.J.H. was not trolling the net, he utilized the net like a dog with a bone once the opportunity presented itself.”[171]
Social networking evidence can play role in monitoring compliance with a sentence and determining whether a convict is obeying the terms of their probation. One of the primary roles of sentencing, beyond deterrence, is to assist in rehabilitating the offender as well as to set an appropriate punishment fitting the crime. For instance, ordering a sex offender not to access the internet or use a social network are often mandatory conditions of their release. A probation officer may choose to monitor Facebook or other social networks to ensure their clients are not abusing their conditions.[172]This may involve looking at known associates’ friend lists in case a parolee creates an account under a different last name or an alias. Not all criminals are that savvy. In Hawkins v State,[173] a man convicted of indecency with a child was placed on deferred adjudication for eight years in which he was forbidden from using the internet. He was caught breaching his conditions and his probation was revoked after he contacting his probation supervisor on Facebook.
Individuals with alcohol bans and driving prohibitions who maintain a social networking account put themselves at risk if they post incriminating pictures of themselves online. In revoking probation for a woman convicted of killing a passenger in a drunk driving accident, a Connecticut court reviewed evidence taken from her social networking account. While her initial parole violation was driving without a license, the court allowed the prosecution to admit photographs of the woman drinking and attending parties to demonstrate that “the beneficial aspects of probation were not being served because the defendant was engaging in many of the same activities post-incarceration as she engaged in before being incarcerated.”[174] The court found that while a high evidentiary standard may still be needed to prove a breach of conditions, once a breach has been proven the state only needed to show “some indicia of reliability to support its claims.”[175] In another case, a man’s parole was revoked when Facebook pictures of him drinking and smoking marijuana were used to demonstrate that he broke the strict terms of his vehicular manslaughter probation.[176]
When composing sentences or no-contact orders, courts should be mindful of the exact terms of the order. While it is common for a court to order a person convicted of a crime to avoid contact with the victim, a court may also need to determine whether it is necessary to broaden the scope of the order. In People v Wente[177], a court found that a man contacting his ex-wife’s friends through Facebook (which were listed publicly), did not breach the terms of his “no contact” order as the terms were not specific. The court recognized the need to be very clear when drafting orders in the age of social networks: “Changes in technology, including the way people communicate, continue to present unique challenges to the courts.”[178]
IX.          Social Networking and Jurors
Ensuring a fair and balanced trial not only requires evidence to be screened for possible prejudice before being admitted to the jury, it is also important that the jury or witnesses do not use social media themselves in a way that creates a perception of unfairness. In Canada, the courts have found the presence of social networks on their own does not necessarily infer a jury will be prejudicial. In R v Maguire[179], Coughlan L rejected the defence’s request to have a first-degree murder trial conducted by judge alone based solely on fears of jury prejudice because of the proliferation of online discussion. Even though there were a number of Facebook groups and online forums set up to discuss the alleged murder, the judge found that the presence of social networking groups “do not show a general prejudicial attitude in the community as a whole so as to justify a change in venue.”[180] However, the judge did recognize that it was a potential issue to address during the jury selection process.
There are also cases where jurors have been caught abusing social networks. A West Virginia police officer accused of financial improprieties had his conviction overturned when it became known that the juror added him as a friend.[181] A civil trial verdict was overturned when it was discovered that a juror became a Facebook friends with one of the witnesses.[182] Whether the breach is serious enough depends on the circumstance. A judge refused to order a mistrial based solely on a juror sending a friend request to a witness in a case involving firefighters killed in an apartment fire, particularly since the witness never accepted the juror as a friend.[183] Another court rejected an appeal of a murder conviction after a juror mentioned online that they had been selected for jury duty without discussing the case.[184]
X.            Continuing the Search
Interesting stories of individuals caught by incriminating evidence on social networking surface almost every day. Whether they make it into jurisprudence may depend on whether the evidence is contested and whether those caught choose to fight the charges. Incriminating statements made on a social network may end up opening the door to more substantial investigations. Sometimes it may be investigators that discover the evidence, although often it is an individual’s own connections who come across the evidence and turn in their online ‘friends’.
Rioters in Vancouver following the Stanley Cup final in 2011 were often identified by their friends and family after bragging about stealing clothing, punching police officers, or partaking in a riot. Online forums helped pair photographs and videos of shoplifters and individuals destroying cars with pictures from Facebook profiles. Over 34 people voluntarily turned themselves in within 3 weeks, having realized the incriminating power of social media.[185] While a number of suspects made the mistake of bragging about their criminal actions online, many were also identified from pictures taken by digital cameras recording the rioting which were later posted in groups devoted to embarrassing the rioters. With millions of individuals uploading pictures of themselves and their names to social networks, authorities have access to a far greater database of pictures than was available combing through mug shots of known criminals in the past. Across North America, more and more police departments are utilizing social media by posting photographs of suspects, and hoping that a friend or acquaintance may be willing to assist in the search.
Savvy investigators may choose to go onto a social network such as Facebook or Twitter and search for posts with incriminating words, although it may be hard to target them down to a specific location. Some websites like Twitter allow users to extensively search all posts. most of which are public. Facebook’s search capacity is more limited and shows only a handful of recent posts on any given subject by individuals with limited privacy settings. At any moment, searching for slang such as “fuckd him” uncovers a handful of assorted posts from individuals from across North America bragging about who they assaulted in the previous 24 hours over some dispute including a gang conflict or road rage. A number of rioters in Vancouver were uncovered by savvy citizens who searched for keywords such as ‘riot’ or ‘Louis Vuitton’ handbags.
An investigator may also use social networks to track down potential associates of a known individual by viewing their ‘friends list’. Individuals on the lam have been caught after posting photographs taken from the locations where they were staying, or even logging onto their Facebook account when a production order had been issued to release the IP address where the account was last logged on. Those with privacy settings enabled may be safe from amateur sleuths, but not from their own friends or from a valid and enforceable search order.
Moving forward, social networking profiles may play a complimentary role with other emerging technologies including facial recognition. Facebook has developed facial recognition software that uses its massive database of photographs and user profiles to identify people in photographs. Because of privacy concerns, the company is slowly rolling the technology out and artificially limiting the recognition capacities to those on a user’s friend list.[186] However, the potential may exist for a government agency to obtain a search warrant in the future to use that technology for a broader search. In Canada, driver license databases in some provinces are already equipped with facial recognition technology in order to prevent identity theft. In British Columbia, controversy has arisen after the provincial insurer offered to use this technology to assist in the identification or rioters.[187]
XI.          Evidentiary Burdens and Uses in Civil Proceedings
Civil proceedings have a lower evidentiary burden than criminal proceedings and the focus is on understanding the consequence of relationships between individuals or entities, rather than expressly proving wrongdoing. While courts maintain fairness and ensure evidence is used appropriately, issues regarding social networking evidence are more likely to deal with how parties may access evidence and determining relevancy.
The relevancy of social networking evidence in the context of a civil proceeding depends on the issues being disputed. In cases of defamation, the challenge with social media is often uncovering anonymous individuals hiding behind fake profiles. In personal injury cases, courts ensure a plaintiff has provided the defendant with photographs or posts that may demonstrate the seriousness of their injuries or validity of their claims. This results in cases where courts have to resolve mistrust between the plaintiffs and defendants about what information should be disclosed and what should remain private. After both sides have the evidence, the court will then determine whether an injury occurred and what the appropriate damages should be. In family law, participants may not have the same need to uncover incriminating hidden social networking evidence as in litigation, but social networking content surfaces particularly in child custody cases, as online activity may relate to a parents ability to raise children. In bankruptcy proceeding or disputes over income, photographs may have relevance to ability to finance a lifestyle and may work adversely to claims of financial hardship. Additionally, courts are increasingly conducting administrative reviews to determine whether social networking content posted outside of school or work is grounds for sanctions.
XII.        Uncovering the Unknown Defendant : Defamation
In most civil actions, the parties are well known at the onset of an action. A plaintiff will know the identity of another driver in a collision or an ex-spouse in a family dispute. However, as the internet allows individuals to create a social networking account under a fake name, it is easier for a person to anonymously post libelous content. Social networking sites such as Facebook, which are free, require very little verification when opening an account and while the terms of use may forbid the creation of fake accounts, most websites do not screen accounts as they are being created and often only get involved when there is a complaint. Their servers will store an IP address associated with the computer that created an account and some sites such as Facebook, require a user provide and email address or a city. In cases where a statement or post is clearly defamatory or a profile is clearly fake, users may report the content and the company may voluntarily remove a post or block an account. In the United States, the networks are themselves protected from being held liable for content by Section 230 Common Decency Act[188], which limits their desire to take a greater role in monitoring content.
When an individual decides that defamation made on a social network is sufficiently harmful to warrant litigation and the identity of the person uploading libel is not readily apparent, an individual may need to rely on a discovery process. The plaintiff would need to start an action and request a court order to obtain subscriber information and IP address from a social networking company. A second court order may then be required from a Canadian Internet Service in order for them to pair the IP address with a physical address.
Handling cross border defamation cases may be costly, and will generally require legal resources in both jurisdictions to even obtain the identity of an alleged defamer. In Canada and US, the legal tests needed to uncloak an anonymous individual are similar, both set a fairly high evidentiary threshold to prove that defamation has occurred.
On the Canadian side, social networking companies and internet providers will generally require a production order to release any information. In AB v Bragg Communications[189], a Nova Scotia court considered a defamation case in which a fake Facebook profile of a teenager was created by an unknown perpetrator for the purpose of causing serious embarrassment. The court ruled that in order for it to issue a production order, it would have to be satisfied that there would be no other means by which a plaintiff could obtain the information and the fact that the Facebook page was anonymous satisfied that requirement.[190] In order for a pre-action discovery to occur, the court would have to be satisfied the essential elements of defamation are apparent. These include:
• the statements were prima facie defamatory, meaning that the statements made would “would tend to lower the plaintiff's reputation in the eyes of a reasonable person”;
• the statements prima facie refer to the plaintiff;
• the statements were published, although this would be apparent by their appearance on the net.[191]
The “prima facie” requirements exist to filter out protected speech such as satire or legitimate criticism. Even if a statement is clearly defamatory, the court may then weigh whether there is any other public interest engaged such as legitimate political debate. However, the court recognized that there is no general public interest in cloaking a defendant in anonymity for the purpose of libelling or destroying the reputation of another.[192]
To obtain the account information from Facebook or other social network, a litigant will need to get their Canadian subpoena domesticated by an American court in the jurisdiction where the social network is located. This is streamlined in California, and a local clerk of the court can domesticate a subpoena for a fee.[193] A social network, upon receiving a subpoena, will notify a user that their subscriber information has been requested. If a user wishes to quash the subpoena, they have the ability to challenge the production order. While, the exact procedures vary by state, most social networks are located in California and a starting reference point is Krinsky v Doe.[194] That case involved anonymous posts on chat forums. If a potential defendant wishes to remain anonymous and chooses to quash a subpoena, the court looks at whether a prima facie libel was established, and then considers whether the merits of potential public interest reasons for allowing a user to remain anonymous: “Requiring at least that much ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism.”[195]
The court may also look at whether an alleged defamation was likely to have caused harm, and whether there was actual libel. In Krinsky, the court quashed a subpoena when it did not find the comment to be truly defamatory:
Rather, [the statements] fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment.[196]
When it comes to social networking, courts are most likely to look at the entire context of a discussion to differentiate between letting off steam and crude comments versus posts that may genuinely damage a reputation. In Finkel v Dauber, [197] a court rejected a defamation suit in which outrageous statements were made about the plaintiff:
While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.
Other issues involving online defamation may involve whether companies may be vicariously liable for comments made by staff during work or parents liable for their children. At least one American court rejected a strict liability approach, requiring authorization or knowledge of defamatory material before it would recognize an employer’s liability.[198] Online defamation cases are growing, and the courts are probably best to maintain a high threshold related to discovery and vicarious liability so as to avoid entangling themselves in petty disputes where the costs of litigating would be disproportionate to the actual damages of defamation.
XIII.      Discovery of Content: Court ordered disclosure
As discussed earlier, with American federal law preventing social networks from releasing user’s content to non-governmental entities without consent of the account holder, the burden of discovery in a civil action falls upon the parties to an action to engage in their various duties to preserve their social networking accounts, to disclose documents and other evidence, and to permit the other party to inspect relevant material. Ideally, the parties will voluntarily deliver all potentially relevant material including pictures and posts from their social networking accounts. However, concerns over privacy and relevancy as well as animosity between the parties often make court-mandated disclosure necessary.
The leading authority on what is discoverable in Canada, commonly referenced in both Canadian and American cases, is Leduc v Roman.[199] There, a plaintiff was injured in a car accident and sued the defendant claiming his enjoyment of life was lessened and he faced severe limitations on his personal life. The defendant requested access to the private areas plaintiff’s Facebook account, believing that the plaintiff’s claims were exaggerated and that pictures relevant to showing the true extent of the injuries would be uncovered. The court made some key findings. First, any material on a social networking account is potentially discoverable as they are documents within the control of the plaintiff.[200] Secondly, the plaintiff has “an obligation to produce all relevant documents in his possession, including any information posted on his private Facebook profile demonstrating activities and enjoyment of life, even if it is contrary to his interests in this action.”[201]
The court acknowledged that it was the plaintiff’s obligation to voluntary produce information. However, the defendant could request court oversight if they did not feel the disclosure was forthright or contained all relevant material. The judge found that there was two possible ways to infer whether hidden material may exist. Firstly, the court could look at account specific information such as public profile pictures and privacy settings to determine whether relevant material was likely hidden behind privacy settings.[202] Additionally, the court could also “infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook's applications to make personal information available to others.”[203] (Not all claims result in the same inferences. In Schuster v Royal & Sun Alliance, [204] the court declined a discovery request based on the mere existence of a plaintiff’s Facebook account because no relevant material existed on the publicly listed profile.) We will discuss which claims warrant more extensive requirements later. Of note is that Leduc opened information on a social network to potential discovery obligations regardless of privacy settings. The court adopted the view that there is no reasonable expectation of privacy, unlike a private diary, when one posts to a website whose purpose is to share photographs and status updates. While Facebook and many social networks allows individual to hide content from the general public, the court refused to designate user chosen privacy settings as equivalent to legal privilege:
To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.[205]
While there is a general duty to disclose the existence of a wide range of potential material, a party only needs to produce photographs or posts that are relevant to a trial rather than their entire account. Typically, this requires one side to declare what they believe may be potentially relevant material. At an early stage, there may be disagreements between the sides over what should be disclosed versus what other private materials. In Anderson v. 45859 Ontario Ltd[206], the court ordered a plaintiff who was injured after being kicked by a horse to provide a list of all photographs on her Facebook site along with the names of who appeared in her pictures to determine potentially relevancy. She claimed that she posted only baby pictures on her private site, which were not relevant to her own injuries.
Civil rules in most districts require parties to disclose relevant information. However, when a court finds that one side is potentially hiding information or failing to disclose all relevant material, they may take stronger actions. As mentioned earlier, civil rules of procedure in most provinces allow a court to order what they consider is just or appropriate under the circumstance. [207] In both Canada and the United States, there have been a variety of ways in which courts have exercised their discretion in regards to social networking accounts. In some cases, the judge may sanction a side for failing to disclose relevant material by forcing an unfettered production in which an entire account may be produced. In Bass v Miss Porter’s School, [208] a Connecticut court presided over a case in which the plaintiff claimed intentional infliction of emotional distress after being expelled from school. After the defendant complained that the plaintiff was not disclosing all posts related to their emotional state of mind following the expulsion, the judge undertook a sample comparison between the plaintiff’s entire Facebook account and what information had been disclosed. The court ordered the plaintiffs to hand over the entire contents of their account to the plaintiff after finding their voluntary disclosure to be insufficient. In Frangione v. Vandongen,[209]an Ontario master ordered a plaintiff who claimed he could only sit 20 minutes at a time to turn over private communications such as messages and chat transcripts in addition to photographs and posts. Some have argued that by applying traditional electronic discovery rules (such as those applicable in commercial litigation) to social networking evidence, the courts have ignored the strong privacy implications that exist with social networks.[210]
In some cases, courts have sought methods outside of the traditional scope of discovery to verify disclosure. In Barnes v. CUS Nashville LLC,[211]a judge who was frustrated with the parties’ inability to voluntarily determine which material was relevant, offered to friend the plaintiff and review posts and pictures. In Lodge v Fitzgibbon,[212] a New Brunswick court ordered the plaintiff’s attorney in a medical malpractice suit to let the defendant’s attorney view the plaintiff’s Facebook account at the plaintiff’s counsel’s office to screen for potentially relevant material. Some American courts have taken a “hand-over-the-keys “approach. They have ordered one side to turn over passwords to their accounts or sign a consent form authorizing a social network such as Facebook or Myspace to provide as much information as possible. Usually this is a last resort after it becomes apparent that a plaintiff may be exaggerating a claim or injury. Some states have extremely broad disclosure rules that require almost all material, even if only peripherally related to the case, to be handed over.[213] In McMillen v Hummingbird Speedway, Inc,[214] a Pennsylvania court rejected any notion of privacy or confidentiality, since Facebook and Myspace’s privacy policies indicate that a site operator might require access to a person’s account and thus the court found there never was a reasonable expectation of privacy. The court ordered the plaintiff, who claimed he was seriously injured in a racing accident, to provide the defendant’s lawyers with his user name and password to his accounts after the plaintiff made a post about going on a fishing trip. In Romano v Steelcase[215], a New York court ordered the plaintiff to sign a consent form authorizing Myspace and Facebook to release personal information from the plaintiff’s social networking account. At least one Canadian court has discussed whether this would be appropriate. The judge in Ottenhof v Ross recognized that a request for a password and intensive access to an account would likely be overly intrusive unless the “party is claiming as part of his or her damages claim a level of disability that inhibits his or her computer time.”[216]
Where a key issue in a case may require information on a party’s computer usage, another alternative may be to bypass the social networking content and request computer logs related to usage. InBishop v. Minichiello[217], the British Columbia court ordered a plaintiff who claimed he was suffering from fatigue as a result of an accident to turn over his hard drive to a third party expert to produce logs indicating how long and at what times the plaintiff used his computer. The defendant claimed the plaintiff’s fatigue was a result of late night usage of Facebook, rather than lingering effects from the accident. The court found that the logs could provide the relevant information without disclosing the content of message or posts.
Changes in technology may provide an alternative to the “hand over the keys” approach when a court wishes to order full production of information. In the fall of 2010, Facebook introduced a feature that allows any user to archive and export their entire account into a handy backup in which all photographs, posts, and messages are saved.[218] An order to export such an archive would in many cases be a more direct and efficient approach than one requiring a party to hand over passwords and account information to the court or opposing party.
XIV.      Ex-Parte Motions And Adverse Inferences
 
Courts are realizing the challenges of preserving social networking evidence in adversarial contests where accounts can easily be shut down and photographs or statuses can be permanently deleted. As a result, they are beginning to grant motions designed to preserve information or impose adverse consequences on a party who appears to be deleting relevant information.
In Terry v Mullowney,[219] the court drew an adverse inference against a plaintiff in a personal injury lawsuit after he shut down his Facebook account mid-litigation. Some of the public pictures that had been visible apparently showed the plaintiff smoking marijuana and partying with friends. The court concluded that the plaintiff had likely posted additional incriminating evidence undermining his claim before the account was deleted. The court denied damages for loss of work and future income, however the plaintiff was still awarded moderate damages for pain and suffering from the accident.
The trend moving forward in e-discovery in social networks may be the use of ex-parte motions prior to discovery to pre-emptively prevent one side from deleting damaging information. An ex-parte motion is where one side requests a court order without alerting the other side and is usually only granted in cases where advance notice might cause irreversible harm. While parties have a general obligation to preserve relevant documents once an litigation has begun, a court in New Brunswich granted the defendant’s ex-parte motion to force the plaintiff to consent to having an third party supervise the preservation of her account. In Sparks v Dube[220], the defendant became aware that the plaintiff had a Facebook account which showed a publicly accessible photograph of the plaintiff participating in a zip-line course, shopping and relaxing on a beach which appeared to contradict her claims that she was seriously injured. The court noted that it was very simple and quick for a party to delete relevant material once the plaintiff become aware or its potential impact on their claim, and that this fear had played out in the past:
Weighing in favour of the hearing being held ex parte is the real and legitimate concern that any data that might be deleted from her Profile in violation of a Preservation Order made if both parties were present for this motion, would very likely be impossible to resurrect after the fact.[221]
The court’s decision tried to set a balance between the need to preserve evidence while protecting potentially private information. First, the court required the moving party to show the social networking account sought is under the other side’s control (as is all content posted on a person’s account) and the content passes a “semblance of relevance” test[222]. The court allowed the ex-parte motion to supervise discovery of the Facebook account because public photographs posted after the accident (including the zip line) were relevant to determining the plaintiff’s injuries and it was likely that more material was available in hidden areas. However, the court denied the ex-parte order for the plaintiff’s YouTube, Twitter, and LinkedIn as there was no evidence that relevant material existed on those sites. Secondly, the court allowed the defendants to deliver an order to the plaintiff’s attorneys requiring them to appoint either another lawyer from their firm, or an independent agent to oversee the process. The plaintiff was instructed to download and preserve the material, while a third party would be present to supervise the process, record the times and verify that the entire material was saved.[223] The court issued a temporary interlocutory injunction restraining the plaintiff from deleting material until the account was backed up. Lastly, confident that a backup of the material had been made, the court ordered the plaintiff to ensure all photographs or potentially relevant material was disclosed on her list of documents for future inspection.[224]
Ideally, counsel will advise clients of the dangers of posting incriminating material as the beginning of a case to reduce the potential that further material will be posted. In the age of social media, at least one court has made it clear that lawyers are legally obliged to alert their clients to the admissibility of evidence: “[it is] incumbent on a party's counsel to explain to the client, in appropriate cases, that documents posted on the party's Facebook profile may be relevant to allegations made in the pleadings.”[225]
Discovery requests to uncover hidden content may not be permitted in all hearings. While essentially all jurisdictions have civil rules allowing discovery in litigation, some provinces have statutory arbitration hearings to reduce litigation costs in certain proceedings such as automobile claims. In Prete v State Farm Mutual Automobile Co, [226] the Financial Services Commission of Ontario rejected a request by an insurance company to force a claimant to disclose information from his social network:
As well, the nature of social networking forums make the requirement to disclose images on such forums procedurally burdensome in the context of an administrative law tribunal. Active participants in these sites post and remove images frequently. The images do not necessarily have the date upon which they were created. It is not uncommon for adults to post their baby pictures. This practice exemplifies the reality that an image may be posted on a date relevant to the claim but was not created at a relevant time. It would be a procedural quagmire to set guidelines for the preservation and production of these images in a manner that would render them reliable evidence in a process that is required to provide a speedy, accessible and fair process for dealing with disputes relating to the Schedule.
XV.        Methods of Preserving and Producing Social Networking Evidence
Each party in litigation has a duty to preserve and disclose relevant material once there is a reasonable prospect that there will be a legal proceedings. Unless a litigant has a reason to suspect their adversary is failing to disclose all of the relevant material or is not preserving evidence, then the discovery process can proceed with minimal court oversight. The duty to preserve potentially relevant material, including a social networking account, may be triggered as soon as litigation begins. In Ottenhof v Ross, a suit involving injuries alleged to have occurred during an arrest, the court made it clear that the plaintiff was required to preserve his Facebook page “in the same way that any litigant is required to preserve potentially relevant documentation.”[227] The court outlined the proper way to conduct disclosure:
The pages at a social networking site or internet site including a Facebook page is a document for the purpose of discovery and should be listed in a party’s affidavit of documents, if relevant (“relating to any matter in issue”). The mere existence of a Facebook account is insufficient to require its production on discovery. Whether it is listed in the affidavit of documents or not, the responding party is entitled to cross-examine on the affidavit of documents to determine firstly if it exists, secondly the relevance of the contents, and finally production of the relevant portions for which privilege is not claimed.[228]
It may not be necessary to hand over the entire account to the opposing party, archiving an account and providing an itemized list of photos and potentially relevant messages or statuses may be sufficient. To facilitate this process, sides may choose to agree in advance on a relevant time frame of updates or photographs that would potentially be relevant to the process.
Lawyers seeking to assist their clients in preserving material or who wish to capture material from an adversary’s account can either manually review pages to capture relevant material or use tools freely and commercially available to preserve materials. While some courts may admit screenshots or even printouts, it is far more reliable to capture original sources or generate a time stamped archive.
As mentioned above, Facebook, North America’s most popular social network, has an archive function that allows a user to download a copy of their entire profile which should help relieve the “e-discovery headache.”[229] A litigator should advise clients to utilize this new feature in order to meet their duty to preserve evidence. This is currently available, as of the writing of this paper, by logging into a user’s account, going to the account settings tab under the Account menu, and selecting ‘Download Your Information.’ [230] It may take a few hours for Facebook to automatically to process the request, at which point a link will be sent by email to a compressed archive containing directories of photographs, chat transcripts, profile posts and settings.
There are also some commercial solutions available to assist litigators in backing up their own client’s material if a duty to preserve or a discovery request is triggered. Companies such as Hanzo Archives[231], have web0crawling software capable of backing up Facebook, Twitter, Linked and YouTube media. They also have useful tools for companies to integrate with enterprise backup solutions for automating preservation of content.
There are other tools that exist for those looking to capture posts by other users. Some browsers, such as Apple’s Safari, allow users to save a webpage as a template and similar add-ons are available for Firefox. Some websites such as Twitter allow third party programs to download and archive recent tweets, however, this should be done early in the process as Twitter has limits on their API and how far back a search can go.[232] However, Twitter has recently reached an arrangement with the Library of Congress to make all public Twitter posts (known as Tweets) older than 6 months available to researchers.[233]
There has been some debate whether a user could subpoena a social network such as Facebook to gain access to their own account. Social networks are permitted to release an user’s entire account to the owner with their consent and some have stated that such a subpoena would be enforceable in the US.[234] However, with sites such as Facebook offering their own built-in archival functions, it is unclear why an individual would need to subpoena their own account from a third party.
XVI.      Determining what material is relevant and discoverable
A challenge in many of the cases is that the sides may not agree on what material is relevant to a particularly claim. Social networks such as Facebook allow users to post information in a private area because users have legitimate reason to restrict who can view which information. While Leduc[235] made it clear that there is no absolute right to privacy in regards to social networking content, there is also no obligation for a party to turn over intimate photographs or embarrassing personal messages to an opposing counsel if they are not relevant to the suit.
In a contract dispute, a party may be under an obligation to disclose emails leading to the formation of a contract between internal sources. In an employment dispute, social networking material is generally only relevant if it materially affects an individual’s ability to perform their job. In many types of disputes, such as family law or employment law, it may only be publicly available social networking material that affects the relationships between the parties that is relevant, and an extensive discovery process may not be required. However, where litigation surrounds a physical injury, or a claim relating to emotional harm or well-being, material that may be somewhat private and hidden in a private profile, such as photographs or status updates, may become relevant and there becomes a statutory duty of disclosure. For instance, the court in Sparks v Dube, discussed earlier, considered photographs on a zip line relevant because the plaintiff clamed she suffered ongoing “severe impairment”.[236] However, had her claim been for pain and suffering at the time of the accident, photograph posted later would have been irrelevant. The broader the claim for damages is, the more likely a court will consider social networking material relevant.
The courts may conduct a basic proportionality test, using a low threshold in favour of a duty to disclose, to balance between the needs of fairness to litigants versus other values such as privacy or efficiency. With the exception of some administrative tribunals, efficiency is less of an issue with social network-centered cases as the amount of material would be far less than a patent or commercial dispute where thousands of documents and emails may have to be reviewed. In Carter v Connors,[237] Ferguson J conducted a broad survey of general evidentiary rules regarding relevancy. The court concluded that all evidence that could be logically relevant to a fact would be admissible unless it was precluded by an existing rule or because it was far too prejudicial. Applying this to social networks, the court concluded that the threshold was low and that:
…the success of an application to retrieve an individual's electronic computer data principally depends upon the degree of intrusion into the private lifestyle choices and electronic activity of the Internet user as well as the probative values of the information sought.[238]
An item is relevant at the discovery stage even if on its own it is not particularly conclusive, but it has a semblance of relevance that could possibly lead to a further inquiry or “the answer may lead to the discovery of admissible evidence.”[239] The court found exceptions might exist for material that involve third party privacy (such as chat messages received)[240], or material that may reveal “intimate details of the lifestyle and personal choices of the individual” and has otherwise limited relevance to key issues.[241] Plaintiffs are much more vulnerable to broad discovery obligations.Carter found that by initiating a lawsuit, the plaintiff “implicitly accepted certain intrusions into what otherwise might be private information the disclosure of which would ordinarily be left to her own personal judgment.”[242] While the plaintiff may accept certain intrusions, the intrusions still must be predicated by evidence, and the court still retains a degree of discretion. The court inBishop found it could reject overly broad requests with unknown relevance, or where they do not have significant probative value and raise issues of confidentiality.[243]
Where physical injuries have occurred and a plaintiff claims they are unable to enjoy life or work, photographs on a social network picturing any sort of physical activity may have a high degree of relevance. In Murphy v Perger,[244]the plaintiff claimed that she was no longer able to engage in sports and could no longer enjoy life. The court found that photographs found in a private area of Facebook could be relevant for not only assessing credibility of the claim but also in determining damages. The plaintiff has submitted pictures of herself before the accident, and the court felt that other photographs found on the site would be relevant. In Leduc,[245] the court likewise found that photographs found in a private area would likely be relevant to the plaintiff’s claims of loss of enjoyment of life, as they would demonstrate how he lived his life since the accident. American courts have taken a similar approach, particularly to claims that involve ongoing injuries or enjoyment life. A New York court in Romano v Steelcase[246], an action concerning injuries that occurred when a woman fell out of an office chair, found that photos on her Myspace and Facebook accounts could be relevant to her claims that she suffered permanent injuries and was confined to her bed. The court allowed extensive discovery, in particular, because her Facebook profile appeared to show her smiling outside of her house and mentioned that she had travelled out of state. The court found “[p]laintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defence of the action”[247]and, as such, photos may be relevant to both the extent of a plaintiff’s injury and in determining what damages should be awarded.
Where a plaintiff claims severe emotional distress or post traumatic stress, American courts have been willing to allow the defence access to private communications and posts on a social network, as they may be relevant to the plaintiff’s emotional state. In EEOC v Simply Storage Management,[248] two plaintiffs sued a former employer for emotional pain and suffering and loss of enjoyment of life after allegedly being sexually harassed by a supervisor. The court ordered the plaintiff to turn over information relevant to their emotional claims as well as possible alternative explanations for their suffering. This included any posts, pictures, groups joined, or applications “that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”[249] The court, however, did not force the plaintiffs to turn over all communications as the plaintiffs ability to communicate was not at issue, only their emotional state. The court also limited disclosure of communications with third parties to those necessary to provide context to issues of emotion, and did not require pictures posted by others to be disclosed. The court avoided setting too broad a precedent, by stating that such discovery obligation were only relevant to claims that went beyond “garden variety emotional distress”.[250] A New Jersey court, in a case appealing an insurance company’s decision to deny the costs of treating beneficiaries with eating disorders, ordered the beneficiaries to hand over posts and shared information that could be relevant to their claims.[251]
Some courts have determined that when a plaintiff makes claims that they permanently cannot work at all or have some sort of brain disability from an accident, their entire account including private communications may be relevant to their capacity to communicate and whether an injury is as severe as claimed. In Wice v. Dominion of Canada General Insurance Co,[252] the court determined that any social [missing word?] could be relevant to whether he needed the services of a personal assistant due to alleged brain damages and the plaintiff was ordered to preserve everything in his account. In Frangione,[253] the plaintiff’s claim of a catastrophic brain injury resulted in the Master ordering the plaintiff’s entire profile including private messages to be handed over. The messages were determined relevant to show how the plaintiff, who claimed he could only focus a few minutes at a time, had lived his life since the accident. However, it should be noted that the Master did not distinguish between personal communications such as messages, and private posts that are shared to a larger circle of friends when rejecting the plaintiff’s concerns over privacy. Other courts, such as Carter[254] and Bishop,[255] have taken a different approach as mentioned earlier. Instead of turning over personal communications to determine usage, they ordered production of either computer logs or those maintained by the internet service provider.
XVII.    Denial of Discovery Requests and Costs.
Requests for discovery of social networking material may be denied if done at a late stage in a trial, or if a party cannot demonstrate the relevance of the material sought. Where a party seeks material with limited relevancy or fails to disclose relevant material, they may also be liable for costs.
Any attempt to request discovery of information from a social networking profile should begin with a factual basis. This may be a logical inference available from public profile information. The party requesting the information should also clearly explain how the evidence requested would be relevant to the case or the request risks being denied. In Schuster v Royal & Sun Alliance Insurance Co. of Canada[256], the court denied an ex-parte discovery to access a plaintiff’s Facebook account as it was done late in the discovery process and failed to clearly give reasons why it felt the Facebook account would contain relevant material. While courts may be open to inference, an ex-parte application requires “evidence of irreparable harm must be clear and not speculative.”[257]The court also warned the defendant that, “the party who has failed to comply with its obligations or who has asserted without justification that the other has failed to do so, will be accountable for the costs it has caused.” American Courts have followed a similar test, denying discovery requests where a party has failed to establish a “factual predicate with respect to the relevancy of the evidence.”[258]
The timing of discovery requests for social networking must generally happen early enough in the process to provide both sides ample time to gather evidence. A defendant cannot wait until the last minute for new material to be posted in order to maximize the amount of potentially incriminating social networking evidence that will be posted. Unless a litigant can show that the evidence obtained demonstrates substantial or unexpected change in circumstances, courts are likely to deny late requests to access private material. As well, parties have an ongoing duty to disclose any relevant material they post after initial discovery that shows a change in circumstance.[259] Even where material may be otherwise admissible, the courts are most likely to limit discovery if it risks delaying the trial, especially if there is a failure at an initial discovery meeting to inquire about photographs or social networking material. In Kent v Laverdiere,[260] involving injuries resulting from a dog bite, the Master declined a request to reopen discovery. The defendant had failed to ask the plaintiff about the existence of possible photographs and the Master felt that reopening discovery would risk delaying the trial. The Master also noted that had the request come earlier, they would have likely allowed discovery for claims of loss of enjoyment of life as some picture appeared to show the plaintiff smiling, which would have met the threshold for the semblance of relevance. However, it would have denied discovery for claims such as loss of comfort, care or guidance made by the parents of the plaintiff since these could not be determined from the plaintiff’s Facebook.
XVIII.  Evidentiary Issues: Authentication, Context, and Prejudice
Unlike criminal trials, social networking evidence in civil trials is far less likely to face a rigid admissibility test or face the same evidentiary burdens that occur where the potential for imprisonment exists. Prejudicial evidence may be more relevant to damages or the relationship between the parties. The same scrutiny over authentication and the quality of evidence is often not apparent. Pictures or videos taken from a social networking site may be admitted, even if they are grainy or the quality is poor. A federal court in admitting YouTube videos in a royalty dispute recently commented:
“The Court has viewed the videotapes and while not likely to win any award for cinematography, they may be no worse, for example, than the quality of some surveillance videos used in trials.”[261]
This however, does not mean that authentication or contextualization is not necessary if one side wishes to admit their own evidence. Where one party attempts to introduce evidence they claim to have been received from a social network, the courts may require them to disclose how they obtained the evidence and explain its relevant. In Knight v Barrett, [262] the New Brunswich court asked the party attempting to present evidence to annotate a Facebook printout and provide details on how they came to possess the printouts. A Kentucky court noted that in a civil trial, a photograph taken from Facebook (in this case intoxicated pictures of an ex-wife taken by a friend of in a custody dispute) did not require a high level of authentication but could be done by any testimony describing the subject matter of the photo.[263] The court then acknowledged that while photos can be faked or altered, it is up to the litigants themselves to challenge the evidence and put forward those allegations for the consideration of the court.
Social networking evidence may be denied admittance if the only purpose is to challenge the credibility of a claimant or to put the litigant in an unflattering light and is highly prejudicial. While this is a general evidentiary rule, it is especially important social networking cases where profiles may contain highly embarrassing information that may be unconnected to the issues in the litigation. In Kinlock v Edmonds, [264] a female youth sued a police officer who tethered her while in police custody. The court denied attempts to admit photos of the plaintiff using drugs which were obtained from her Facebook page. The court recognized and rejected the defendant’s strategy of trying to portray the plaintiff in an unflattering light and questioning her character. On the other hand, had that case been a child custody dispute, drug use by one of the parties would have been highly relevant to their parenting ability. Courts should also be careful with admitting profiles with pictures that may be indicative of taste rather than any probative value. A US court correctly refused to admit a Myspace profile, allegedly belonging to a police officer in a wrongful death suit that portrayed a photograph of Clint Eastwood in Dirty Harry deeming the evidence to be “merely argumentative and prejudicial.”[265]
Courts should also be careful when dealing with printouts or testimony from a social network to differentiate between material posted by a litigant and material that may be posted by an acquaintance or automatically generated by the system. While a photograph posted by a friend featuring a plaintiff or a defendant may have relevancy, most social networking sites allow friends to comment or leave posts on an individuals’ page without approval. In an employment law case, an Alberta court overturned an employee’s dismissal for allegedly making harassing comments. The employee had been dismissed after a co-worker complained about harassing comments made about the co-worker on the employee’s wall. The court concluded that the comments were likely made by another individual without approval, and the mere presence on statements on the employee’s Facebook wall had no relevancy to the employee’s ability to perform their job and therefore no just cause for dismissal.[266]
 
At least one recent decision appears to show a judge misinterpreting how social networks function and present material. In a recent child custody dispute, an Ontario judge criticized a father for uploading a video of his daughter to YouTube and juxtaposing it next to another unsavory video.[267] While the father’s decision to upload a video may have been questionable and relevant, many social networks such as YouTube or Facebook dynamically generate which advertisements or related content is shown, often based on the computer settings or search terms of the person viewing the pages. Courts should be very clear before admitting evidence that only pictures, video or posts are admitted and not peripheral advertising or related links. Facebook, for instance, tailors its advertisements based on keywords and demographics of the person user viewing the profile. Any racy ads shown could be prejudicial while also completely irrelevant.
XIX.      Handling jurisdiction
While most social networks are located in the United States and many based out of California, the courts in the United States will generally limit their involvement to suits involving Canadians to the essential elements necessary such as domesticating production orders. While servers hosting the content may be located in California, it typically does not create a substantial enough connection to that jurisdiction to give a local court any authority to hear the matter. In other cases, a court might hold that while it does have the authority to hear a matter, it should refrain from exercising jurisdiction but rather leave it to be resolved in a more convenient forum. In Elmo Shropshire v Canning,[268]a California court rejected at attempt to sue a Canadian man in their courts for copyright infringement after posting a video with an unlicensed song on YouTube, noting the proper venue would be a Canadian court. The courts will also reject claims that because a page was viewable in a state, that there is a sufficient connection. A Wisconsin court refused to consider a trademark infringement case involving a California company who used the same trademark, finding that without active solicitation into a region there was an insufficient jurisdiction.[269] However, where social networking behavior is purposely and intentionally directed at an individual or company in another jurisdiction, they may be liable to be sued in that location. A Florida court found that a company that purposively directed defamation at a company located in its state on a website hosted elsewhere had established “minimal contact” and sufficient jurisdiction.[270]
XX.        How admissible and discovered evidence is used and weighed
A.    Personal Injury:
While many of the previous cases discussed cover the legal issues that courts may deal with in enforcing discovery obligations or interpreting admissibility of evidence, the most common usage of social networking evidence is to determine damages. It is also notable, that not all of the cases already discussed actually went to a final decision. Sparks v Dube, the New Brunswick case where a court ordered supervision of a download of a plaintiff’s Facebook profile, was settled out of court shortly after the ex-parte ruling was issued.[271] In many times, the threat of having to divulge personal materials may be more of a tactical maneuver, and a settlement is reached before trial.
In many of the cases that go to trial, we see a wide range of examples of how incriminating evidence may have actually changed the nature of the case. In others, we see that while social networking evidence may be discoverable and reasonably relevant, the courts occasionally will find that the evidence is not particularly probative and does not contradict more authoritative medical reports or personal testimony.
There are some cases where the social networking evidence is so adverse to a plaintiff’s interests that it undermines a plaintiff’s entire case. In Tyrell v Bruce,[272]an Ontario judge rejected the plaintiff’s entire belated claim for severe injuries after the defendant uncovered a video of the plaintiff dancing around in a rap video. Mostly, the evidence speaks to the extent of the injury and the amount of damages. Common in automobile accidents, some of the cases involve plaintiff’s seeking claims beyond statutory maximums or standardize insurance company payout offers for general damages. The evidence may not eliminate all damages as the courts are likely to issue general damages for pain and suffering, but may be used to demonstrate that a plaintiff’s ongoing claim is exaggerated.
We see a reduction in non-peculiar damages for a car accident victim after Facebook photos surfaced of him playing with children and twisting his back at a wedding.[273] A British Columbia court reduced the claim for future earnings loss of a 22 year old who suffered a back injury, after discovering Facebook photos that showed her white water rafting, playing soccer, and climbing.[274]Another court minimized damages to an accident victim who claimed she could no longer engage in activities after Facebook photographs appeared of her hiking and riding a bike, raising doubts about whether the injuries affected anything other than her ability to run long distances.[275] A court refused to issues further damages, beyond non-pecuniary ones, for a boy who was injured in three separate accidents after Facebook photos showed him playing football and other sports indicating his knee injuries has healed.[276] Courts have also found that celebratory photos or smiling photos were evidence that damages should not include loss of enjoyment of life. An Ontario Court in Kourtesis v Joris[277]found that Facebook photos of the plaintiff celebrating and in social poses indicated that she still enjoyed life, and therefore was not eligible for increased benefits beyond those authorized under the province’s no fault insurance scheme. Similarly, an Ontario judge limited damages to a girl who received a significant superficial scar across her face in a car accident. The court found the injuries were not seriously interfering with her life as “she socializes, dates, and has even gone to the extent of providing her picture on the computer program Facebook.”[278]
While there have been cases where social networking evidence undermines a plaintiff’s case, courts have also recognized that they must also be placed within the context of medical reports and other testimony, especially when the claim is for reasonable damages expected from an injury. In Mayenburg v Lu, [279] the court put little weigh on the defence’s admission of photographs of the plaintiff hiking, dancing, and bending, noting that the plaintiff’s claims were not that she could not do them, but that she could “feel the consequences afterwards”. The court warned the defence against trying to create a “straw person who said she cannot enjoy life at all.[280]” Another court felt that despite admitting a video from Facebook that showed the plaintiff capable of athletic moves including jumping out of a pool, the plaintiff still deserved “fair and reasonable amount for his pain and suffering and loss of enjoyment of life.”[281]
Some courts have also recognized that a plaintiff who presents a positive image on a social network, may not be putting forward an image that genuinely reflects their suffering or their actual medical condition. In Cikojevik v Timm, [282] a BC court found that photographs of the plaintiff smiling and engaging in activities such as running did not contradict doctor’s testimony that she suffered from depression and head injuries. The court found it important to view the photographs in the context of an outgoing individual who was keeping active to keep her depression at bay. In another case, an Alberta court found that Facebook photographs of a man riding a bike were unpersuasive when compared to medical evidence about the painful foot injuries he suffered after falling through a faulty platform while playing laser tag:
While Mr. DeWaard's Facebook profile is not completely consistent with his evidence at trial, I am prepared to accept that Facebook profiles may contain an overly positive perspective regarding one's abilities and interests or a certain amount of puffery.[283]
Courts seem to be aware that smiles can be posed, and that athletic people may attempt to persevere through injuries and that people may be more willing to put on a brave face. Social networking evidence is unlikely to affect reasonable claims, but those who wish to exaggerate their injuries will face far more scrutiny if they choose to engage in online communication. They may have to choose between having a social life or waiting for a suit to make its way through the courts.
B.    Social Networking and Income Assessment
In cases where the income of a party or their ability to work becomes an issue, including bankruptcy suits, spousal support, or access to social service benefits, social networks and particularly photographs may provide probative and relevant information into the sort of lifestyle an individual lives and their access to financial resources based on the activities in which they engage in. Vacation photographs or participation in expensive activities may provide reasonable grounds for a court to doubt the credibility of claims related to poverty, financial hardship and inability to work. A BC court refused to discharge a man from bankruptcy and debts to a former girlfriend after his creditors introduced photographs from his Facebook account showing him socializing on numerous occasions at an expensive social club.[284] An Ontario court required the administrator of estate who claimed she was an impoverished student to pay legal costs after photographs admitted from her Facebook account showed her clubbing and riding in a limo.[285] A judge rejected a father’s attempts to reduce his child support obligations, finding that Facebook photographs depicting the father on motorcycle and his girlfriend skydiving contradicted his claims of financial hardship.[286] In a personal injury case discussed earlier, Cikojevic v Timm[287], the Master rejected an earlier motion by the plaintiff to get an advance on damages after photographs from her Facebook account were admitted which showed her able to afford activities such as snowboarding. It is always up for the court to determine whether social networking material is actually probative of the ability to pay and to reject evidence that may be wrongly interpreted. An Ontario court rejected a former husband’s attempt to end spousal support because he felt his wife could afford to vacation in Paris and Cancun. Apparently she had clicked a ‘like’ button on Facebook that indicated she wanted to visit those destinations despite her relative financial inabilities, which was very different from uploading photographs of her actually vacationing.[288]
Social networking evidence can also be used to challenge an individual’s credibility about their ability to work. A court rejected a father’s contention that he was not capable of working due to medical issues after reviewing submissions from his Facebook account and finding evidence that he regularly biked, engaged in off-road motor sports, and likely fixed vehicles under the table based on photographs of unknown cars in his driveway and profile statements that said he was self-employed.[289] Courts in the US have denied social security benefits or increased support payments for individuals whose social networking profiles appear to contradict their medical health concerns. An Arkansas court refused to overturn an administrative decision denying a woman’s application for a permanent disability pension because of her alleged mental incapacity, noting she spent all day on Facebook and had little difficulty engaging in activities when she wanted to.[290] A New Jersey appellant court took judicial notice of a Facebook photograph of a woman smoking in a review of whether she was fairly denied permanent disability benefits, noting that such evidence appeared to contradict her claims that she was unable to work on account of severe asthma.[291] A New York court determining spousal support amounts found that Facebook entries about a woman belly dancing were relevant to the effect an alleged accident had on her life and whether she was unable to leave the house to find employment.[292]
C.    Social Networking and Family Relations
While most criminal and civil trials limit the ability to introduce prejudicial character evidence unless it is highly probative or relevant to some material issue, family law reflects a free-for-all when it comes to admitting and considering content from social networks. Almost any picture, status update, or link shared may be relevant to the capacity of a parent to raise a child, including exposure to a potentially dangerous lifestyle or acrimonious relations. Spousal violence, drug use, or even posting a children’s picture without the consent of a former spouse may be relevant. Often, it is the character of the individuals that are the central issue, and the only legal issue for a court is to determine in regards to social networking evidence is the weight a piece of evidence should have once admitted, what the context is and whether it has any bearing on parental ability.
Evidence from a social networking case may not come directly from one of the parents but could be the actions of a person associated with the family that becomes relevant to an issue. A Nova Scotia man was granted a relocation order to move his child to a different town after a co-worker of the mother sent out a Facebook message to a number of people in the community implying that the father sexually molested his children.[293] Courts have also found unique ways to interpret evidence. In Buswa v Cansoneri,[294] the judge admitted Facebook messages from a deceased man to a woman who claimed to be his daughter, including happy birthday wishes, to help establish they had familial relations and that she should be the administrator of his estate.
Increasingly, it is the profiles and posts of parents and former spouses that tend to lead the courts to adversely rule against one of the parties. How the evidence comes to a former partner may not be always be clear from the case law. It may be that former spouses are still connected as ‘friends’ through a social network, or a mutual friend may be willing to pass on material from another’s account, or through basic discovery process. In some cases, it is what a person does online that becomes relevant to the decision. A father whose Facebook profile contained inappropriate language and homophobic jokes was denied access to see his children.[295] Another father was denied joint parenting control after the court reviewed his Facebook, noticing crude and obscene references to porn stars, links to a page referring to his former spouse as crazy and other derogatory material alongside photos of his child.[296] (The father was also banned from posting any photos of his child online.) In another case, a wife won sole custody after her husband made repeatedly negative comments about her, and appeared to stalk her by posting photographs of her car parked at a friend’s house on his Facebook account.[297]
Courts have on occasion drawn negative inferences against parents who upload videos of children to a website such as YouTube without the other parent’s consent, raising questions about the parents respect for their child’s privacy or the terms of a joint parenting agreement.[298] Courts may treat posting children’s pictures online differently depending on whether it is on a public website such as YouTube, or one with privacy settings such as Facebook and depending on the general arrangements between the families and whether the photographs are tasteful. One court refused to get involved when a mother complained about the father putting photos of their daughter on the ‘potty’, disagreeing it was provocative and instructing the mother to ask the father directly if she wanted it taken down.[299] Another judge recognized that with changing times, no inference should be made from a parents’ decision to share photographs online with friends and family:
Although I personally do not agree with posting children's pictures on Facebook, I suppose that our present society accepts this in the same way as photo albums of old were encouraged in certain families. In and of itself, this pastime would not qualify as a material change of circumstances affecting the best interests of the children, unless one were dealing with pornographic material. The copy of the picture provided by the mother certainly does not qualify as pornographic material.[300]
Social networks will quite often reveal photographs or statements indicative of lifestyle choices that may reflect badly on a parent in a court case. A young mother who uploaded photographs of herself to Facebook showing her smoking marijuana, drinking and dancing was denied custody of her child and unsupervised overnight visits.[301] In another case, a court admitted chat transcripts of a father discussing the price of illegal narcotics and found adversely against the father, while finding no fault with the mother for obtaining them directly through his account as they had a shared password.[302]
However, it is always up to the courts to weigh the entire facts of the case and often to make a subjective interpretation of whether social networking material relates to parenting ability. One judge rejected as irrelevant that a mother used to work as a stripper and had salacious photos on her Facebook account, stating that “[c]onduct, save as it bears upon the care of the children, is irrelevant to my determination of temporary custody and access.”[303] A father’s attempt to get sole custody of his daughter was rejected when the court ignored photographs introduced of the girl’s half-sister smoking marijuana as reflective on the relative safety of the home.[304] Some photographs can be misleading. A BC judge rejected a mother’s contention a disheveled photograph taken of a father with his daughter likely showed him on drugs, noting the alternative explanation that it was a sleepy morning photo taken while camping.[305]
Attempts to challenge credibility based on single comments out of context may be ignored. One court refused to put any weight on a post made by a husband that he owned a computer shop when it was allegedly false, based on the fact that the court could not find the context of the statement and that he was otherwise credible.[306] Another judge refused to make any inference from a debate over how long a statement was present on the internet based on a printout:
Apart from anything else, I find it impossible to rely upon any printout from the Internet as proof of anything other than the fact of its contents having been posted on the Internet. It is certainly not admissible for the truth of any aspect of what was shown. Times are notoriously inaccurate and can easily be manipulated, and the issue was of relatively minor importance.[307]
D.   Social Networking Evidence in Employment Law and Administrative Reviews
Individuals who post on social networks about their job or school may be accountable and risk facing the consequence. Likewise, pictures, videos or even friend list can possibly be brought up in administrative hearings from human rights complaints to environmental licenses. Generally, in such cases, private posts or comments are not discoverable, as it is rare for most tribunals, arbitrators or administrators to have the same powers as courts to order individuals to produce their records. The exception would be, as discussed earlier, if a person decides to sue for intentional infliction of emotional distress through a court as a result of a termination or expulsion. As a result, evidence in such cases is often obtained from either public posts, or a complaint being registered by someone with access to a hidden profile.
In the workplace, companies have a wider discretion to terminate employment if they uncover social networking material that shows an employee lying, contributing to a poor work environment through harassment or insubordination, or by portraying their company in a negative light to friends and business connections. Often these complaints come before a labour relations board or a human rights tribunal that are examining the fairness of an employers’ decision and reviewing the circumstances to ensure that the termination did not breech any labour codes. Sometimes social networking evidence is used to show dishonesty. The Alberta Arbitration Board upheld the dismissal of labourer, who was terminated after claiming to be too ill to work while boasting on Facebook about how he was in the city and ready to party.[308] Courts have generally rejected the idea that there is any reasonable expectation of privacy when it comes to social networking evidence if the comments have the potential to be damaging to an employer’s business. In Lougheed Imports Ltd v UFCW, Local 1518, the British Columbia Labour Relations Board upheld the firing of two employees who had made numerous comments about their work, including unflattering comments about supervisors as well as inferring the possibility that retaliatory accidents may occur in response to reprimands.[309] The court rejected the privacy argument noting that the comments amounted to “verbal weapons to degrade a Supervisor in front of others” including “other employees and former employees that were friends.”[310] The board also concluded that termination was just, as “the penalty is not out of proportion with the misconduct and there is proper cause for the decision to terminate the employment.”[311] In another case, the BC Human Rights Tribunal rejected a new mother’s contention that she was terminated because of her pregnancy, upholding the company’s decision to terminate her as a result of her detrimental attitude after she made comments about her work “screwing her” and other derogatory terms.[312] There has been at least one case where an employer’s decision to terminate an employee for social networking posts was overturned by an administrative review. In that case, the arbitration board felt that there was no evidence that the terminated employee made the allegedly harassing comment and that the post in question was likely made by a co-worker.[313] Some social networks permit friends to post comments on a profile without authorization.
Educational institutes are also coming to terms with social networking usage by students. Unlike private law cases involving employers, universities and schools are more limited to how they can use comments on a social network because many act as a government actor and thus their students may be protected by either Section 2b of the Canadian Charter of Rights and Freedom[314] or by the First Amendment in the US[315]. In Pridgen v University of Calgary,[316] a student successfully appealed a University decision to reprimand him for comments made in a Facebook group regarding a professor’s teaching style. The Court rejected the University’s notion that “expression in the form of criticism of one's professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments.”[317] While courts have found that students may criticize teachers, educational institutes have the ability to discipline students for comments that violate the law or risk disrupting classes. An Ontario Court upheld the decision to expel a law student, who after being warned, continued to post comments that his fellow students were “subhuman” and made reference to killing sprees.[318] The court rejected the student’s contention that the comments were made out of school and agreed that the comments could create fear and apprehension amongst classmates. It also differentiated between acceptable social networking statements and that which could be held against a student:
This court is mindful of the historical importance of encouraging free speech on university campuses, and rigorously defending the right of students to debate difficult and often highly unpopular issues with passion.  However, free speech has its limits, including the making of threats and defamation of character.[319]
Courts in the United States have taken a similar approach finding that online postings can be grounds for dismissal if they are likely to disrupt class. In J.C. ex rel. R.C. v. Beverly Hills Unified School District,[320] the court agreed with a school’s decision to suspend a student who created YouTube videos mocking another student. It found that statements or posts made on the internet could be grounds for removal if it is “foreseeably likely to cause a substantial disruption of school activities” and a “sufficient nexus exists where it is “reasonably foreseeable” that the speech would reach campus.”[321] The court also noted that it is reasonable foreseeable that material posted on the internet would reach the school. Similar suspensions have been upheld where threatening social networking videos have been produced in jest, such as simulating a teacher being killed, if they “materially and substantially disrupt the work and discipline of the school.”[322]
As social networking use becomes more common, it will likely become more and more common for evidence to be used in unique ways. For instance, an individual who uses a social network to air their grievances may risk aggravating a situation. The BC Human Rights Board awarded increased damages against a standup comic who went too far in a routine by making derogatory comments about two woman’s sexuality, noting that by posting YouTube videos about the incident afterwards he “seriously exacerbated and prolonged the effect” of his original violations.[323] Even who an individual is friends with online may be relevant to a decision. An Environment Review Tribunal upheld the removal of a waste disposal license from a man who was suspected of setting up a shell company for individuals who had committed serious environmental infractions and previously lost their licenses, noting amongst other evidence that he was a Facebook friend with the banned individuals.
XXI.      Moving Forward
This paper was meant to examine the legal issues related to discovering and utilizing evidence from social networks and to look at the ways courts have dealt with it in terms of recent cases. In criminal cases, investigators have tools to obtain evidence directly from the social networks when reasonable grounds exists. They must then proceed to prove the authenticity of the material as well as ensure that the probative value outweighs potential prejudice. In Canada, local investigations can be assisted by the Department of Justice to gather evidence if needed, which can work to obtain the necessary court orders in the United States. Defence lawyers faced with evidence should be aware of issues regarding authentication, context and potential prejudice and be prepared to challenge any shortcomings in a case. In civil trials, parties themselves have obligations to produce any evidence that is relevant to an issue which depends on the nature of the claim or the dispute. In litigation particularly, it is incumbent on counsel for both sides to advise their clients on the risks of using social networks, as well as their obligation to preserve relevant material even if it is adverse to their case. Anyone involved in a dispute should be aware that procedural fairness and truth seeking process will generally outweigh personal privacy concerns and courts have the power to compel individuals to uncover their digital live to assist in dispute resolutions.
Social networks have only been around a few years, so it is hard to predict whether the law in these areas will continue to grow, or whether individuals may begin thinking twice about the consequences of their actions online. Some of the cases covered may spring from misunderstanding the private nature of a social network. Others may be the result of a compulsion to seek attention regardless of the consequences. In some cases, it may even be a feedback cycle where the ability to share material on a social network encourages dangerous behavior, such as the unfortunate case of an Ontario girl who was badly burned after being lit on fire in which the judge remarked:
…one of the attractions of interactive social networking networks such as Facebook or YouTube is that one can become a "Star" if many people visit a site on which videos or pictures are posted (the number of visitors to a site can itself be collated and posted). With luck, a teenager can start the process of perhaps becoming a Star by posting outrageous video clips showing himself or herself engaged in humorous, risky or simply outlandish behaviours.[324]
From a societal view, the use of social networking and growth of the internet has resulted in traditional means of communicating inner secrets and private being displaced with keyboards and chat transcripts which may be captured indefinitely on a server, on a screenshot in a lawyer’s files, or a ‘tweet’ preserved forever in the Library of Congress. This paper is not intended to dissuade individuals from using social networks. From connecting long lost friends to helping overthrow dictators, the benefits of new forms of communication are numerous. However, when individuals do not consider the potential impact of what they share and post online, any form of social incrimination, public or private, can potentially find itself admissible in a court.