The introduction of social networking websites over the last two decades has fundamentally shifted how we interact, communicate, behave, and think. The growing use of and dependency upon these platforms have changed the ways in which our society and even the legal system works. Yes, you read that right. Our legal system is not untouched by the reigning trends of a virtual social life. But we bet it is not to post pictures, videos or share similar interests with others.
Criminal defence lawyers and other legal professionals are utilizing technology, including social media, to provide competent and diligent representation to their clients. The comments, photos, stories, videos and messages shared by their clients or the accused are being used in litigation as well. In Canada, there have been cases where social media evidence relevant to the case were admissible in court.
Social media has become a big part of the way litigators work and how the litigation process takes place. Let’s discuss it further.
Impact of Social Media Platforms on Evidence Collection and Litigation
Litigation Trends Involving Social Media
There has been an increase in the number of lawyers looking for evidence on social media and using it for litigation. Specifically, personal injury and criminal defence lawyers are using social media platforms to evaluate whether both parties have posted anything related to lawsuit issues or whether anything has been deleted since the lawsuit was filed. They even counsel clients not to delete e-mails or Facebook or Twitter posts once a lawsuit begins as it can go against their cases.
The reason why legal professionals rely on the virtual accounts of clients and other parties is that information we post on social media platforms is indefinitely stored on the cloud and is available for future access. Obtaining and reviewing this information is now fair game, especially for defendants. Even if there is no printed document or witness to the crime or incident, a Facebook story or a Tweet can be used to prove the activity and mindset of the plaintiff or the defendant at that time. In fact, the photos or comments posted on Facebook and other social media sites can be used to cross-examine a witness’s testimony to ensure a fair trial.
The Role of Social Media During Litigation
Social media plays a vital role during litigation as the information shared by a user involved in a lawsuit, directly or indirectly, can be used as an electronic record during the investigation and is admissible as evidence at the trial in some cases, if relevant.
The definition of an electronic record in the Ontario Evidence Act (OEA) is ‘data that is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device, and includes a display, printout or other output of that data, other than a printout referred to in subsection’.
As far as its admissibility is concerned, the act states, ‘[For] the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record.’
Evidence collected on social media is typically used in family law where estranged spouses fight each other, in insurance investigations of personal injury cases, and in criminal cases where the offence was committed through social media and/or texting. That said, the emoticons or emojis feature of social media apps is advancing the way litigation evidence is perceived by the jury and the judge. Even if it is not evidence, it is often used by lawyers to indicate the intent of the plaintiff or defendant and can impact the case.
Risks of Using Social Media in Litigation
Using social media for evidence collection involves a number of risks. They include:
- Photos posted on Facebook, Instagram, or Twitter can be doctored and their authenticity compromised, thus jeopardizing the chance of using them as evidence in court.
- Lawyers can use social media unethically to manipulate the case. For example, in some jurisdictions it is okay to research prospective and sitting jurors through social media but communicating with the individual in the process is a big no-no. If a lawyer tries to contact the juror or views his/her LinkedIn profile, it is considered as an improper communication and can negatively impact the case.
- The integrity of the electronic record obtained from social media platforms can be questioned in court if the evidence is not recorded or maintained accurately.
- If the individuals involved in lawsuits comment, share, or post something related to the case, it can hamper the confidentiality of lawsuit details and put the lawyer and his/her client in danger.
Social media platforms are both powerful and risky tools for litigators. On the one hand, they can open the gates to collect strong evidence that often plays a major role in the case. On the other, they can invade someone’s privacy and encourage unethical practices. And with recent changes to the law, there are new disclosure requirements and applications that must be filed if this type of evidence is supposed to be used.
However, if criminal defence lawyers and the parties they represent remain conscious of the new and developing outlets of social media evidence and ethically collect them, they can benefit from this virtual world currently revolutionizing litigation. Although the admissibility and reliability of the public record contained on social media is a topic of debate in the legal community, its impact on bringing justice in cases of voyeurism and cyberbullying cannot be denied. It is the discretion of the litigators to use it as a powerful investigative tool to offer fair representation and reach reasonable settlements rather than manipulating it to obtain the desired benefits.