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#bustedlitigation: When your case goes down… in the dm’s

The introduction of social networking sites over the last two decades has resulted in a fundamental shift in human interactions and relations. Social networking websites now allow users to upload information about themselves, share similar interests with other users, post pictures and videos, and maintain connections between friends and acquaintances.[1] By the end of 2017, approximately 22.7 million Canadians had a social media account, a number that has grown by 300,000 annually for the past two years.[2] In Ontario, the country’s most connected province, 67% of the province’s 14.2 million residents have a social media account.[3] In a sense, social media has completely changed the way we collaborate, and discuss ours thoughts and feelings with others.

Through various social media platforms, users are able to create an “internet identity, update/change content, freely express opinion, interact with other users in the community, and exchange information in a way unparalleled to any other form of communication.”[4] Most social media websites are available to all users, with some age restrictions, and are used primarily for personal and business reasons.[5] Although privacy settings allow users to restrict who can view his or her profile, as well as what content the selective group can access, a great deal of content posted on social media sites remains archived permanently by default.  Complicating matters is that posted content can easily be copied and shared amongst users. Online search tools allow almost anyone to find content anywhere, at any time, as long as there is an Internet connection available. Although these advances in communication technologies have significantly enhanced efficiency and information sharing, they have also become a critical source of evidence in litigation. Generally, Canadian courts have been accepting of electronic evidence such as photographs and online messages to prove or disprove facts and, as a result, many civil litigators have discovered and developed ways that social media can be used to thrust their client’s and opposing party’s private lives under a microscope.[6]

The Increasing Popularity of Social Media

“ If you have something you don’t want anyone to know…

maybe you shouldn’t be doing it in the first place.”

– Eric Schmidt, Former Google CEO

In order to truly understand the impact that social media has had on us as Canadians, it is vital to understand the way it has evolved over the past twenty-five years. The social media revolution began in the early 1990’s, as broadband Internet along with powerful computers and mobile devices became readily accessible and more affordable. Websites such as SixDegrees, Friendster, ICQ and Myspace allowed users to contact other members, maintain those contacts, and share online content with their contacts.[7] Although the popularity of these websites soon faded, they paved the way for social media giants such as Facebook, Instagram, Twitter and LinkedIn to gain widespread acceptance. Today, websites such as these are viewed as being “increasingly popular vehicles for the dissemination of personal information posted on individualized profiles,” and it does not appear that this trend will end anytime soon.[8]

Facebook is currently the largest and trendiest of all the social networking websites. Whereas other social media sites seem to target teens between the ages of 14 and 17, Facebook has been able to appeal to a variety of age groups in Canada, including users between the ages of 18 and 34 (53%) and senior citizens.[9] In fact, in 2010, Facebook accounted for 12% of all time Internet users spent online.[10]  Facebook allows any person, who is at least 13 years old to become a registered user of the site, and as of November 2012 has over 1 billion users worldwide, of whom 19 million were in Canada.[11]  It has unique features such as “wall posts,” “status updates,” “tagging” of uploaded pictures, and “friend requests” that are increasingly popular amongst users.[12]  For civil litigators, this means that information that was once considered intimate and private is now “readily shared among millions with the touch of a keystroke.”[13]

Statistics from Facebook indicate that the average user “creates ninety pieces of content each month, and there are more than 30 billion pieces of content, including blog posts, photos, and news stories shared each month.”[14] Facebook provides users with the instant gratification of being able to speak their mind, and has created a setting for people to reveal a substantial amount of personal information with the ease of a few mouse clicks. Consequently, the widespread adoption of Facebook as a method of communication has provided lawyers with incredible opportunities to “seek incriminating and often blatantly forthcoming evidence.”[15]  For example, access to one’s Facebook page can instantly reveal anything from a person’s location and physical condition, to their state of mind and the people they routinely associate with.

The increasing popularity of “micro blogging platforms” such as Twitter has also contributed to the proliferation of social media evidence being used by Canadian lawyers.  Twitter has an estimated 517 million users worldwide, of which 10 million reside in Canada.[16]  Sites such as this allow users to send and read text-based messages, and also have the option for users to post photos.  Although not as extensive as Facebook, the condensed format of micro blogging platforms allows users to quickly and informally share information.  Messages in the form of “tweets” are displayed on a user’s profile page and can be viewed by friends on the homepage of anyone who is following their “timeline.”  As such, Twitter has created an environment where people can quickly broadcast information about where they are, what they are doing and how they are feeling.  All of which is considered to be an “evidentiary goldmine” for lawyers.[17]

With money and future employment prospects at the heart of a significant amount of dependant support proceedings, websites such as LinkedIn have also increased the value of social media and social networking evidence.[18]  LinkedIn is widely regarded as being the world’s largest professional network with over 120 million users.[19]  It allows users to connect with others in order to “exchange knowledge, ideas, and opportunities” within a broad network of professionals and as such Lawyers have begun using evidence gathered on LinkedIn to demonstrate that certain individuals are cable of attaining a certain earning capacity.[20]

Social Media as Evidence in Litigation

“Privacy is no longer a social norm.”

– Mark Zuckerberg, Founder of Facebook

Thanks to the growing popularity of various forms of social media, it is easier than ever for lawyers to find damaging evidence online “in the form of status updates, late-night tweets and risqué photographs that call ones’ judgment into question.”[21] As a result, many civil litigators covet information that is being posted on social media sites, as they attempt to establish the deleterious conduct of their opposition.

Although the law in Canada is clear that evidence obtained from social media sources is presumptively admissible if it is relevant, there are some critics who feel that this form of evidence is hearsay in its purest form, and that evidence derived from social media is very difficult to authenticate.[22] Moreover, disagreements persist regarding the admissibility of postings found in the “private” portion of a user’s profile.  Maintaining a private profile has been construed by some as having an inherit “expectation of privacy,” and members of the bench have struggled in balancing privacy interests while requiring the disclosure of relevant information.[23]  As Paul Grimm recently noted:

The current state of the law regarding admissibility of [social media] evidence is in disarray, sending mixed and confusing messages to lawyers and judges alike and depriving them of the certainty to anticipate in advance of trial the likelihood of admission.[24]

Members of the Canadian judiciary are still confronting the issue of how information, photos and personal details posted on an individuals’ social media profile should be applied to litigation. However, over the past decade, Canadian courts have started to grant the production or limited production of social media evidence.

Although there is no legal principle associated with the use of evidence found in social networks, pursuant to Rule 30.02 of the Rules of Civil Procedure each party is required to disclose “every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party” and to produce such documents unless privilege is claimed.[25]  This duty to disclose continues throughout the duration of an action, and where the court is satisfied by any evidence that a relevant document in a party’s possession may have been omitted from an affidavit of documents the court may order: a cross examination on the affidavit, service of a further and better affidavit; disclosure or production of the document for inspection; or the inspection of the document to determine relevance.[26]  It is important to note that pursuant to Rule 30.01 of the Rules of Civil Procedure the definition of a “document” is quite broad, and includes videotape, film, photographs, maps, plans, book of accounts as well as data and information in electronic form.[27]

As such, over the past decade, Canadian courts have considered these obligations in relation to information found on social media sites, as well as the obligations of parties, who use social media to post and exchange information. The majority of evidence stemming from social media is categorized as being documentary evidence in the eyes of the court. As a result, lawyers representing litigants attempting to introduce this form of evidence are tasked with satisfying the rules of best evidence, authentication and hearsay.  They are also obliged to present social media evidence by way of a printout or screenshot and will likely use a live witness under oath who can testify as to what the record is, and how it is capable of supporting a particular finding.[28]

A review of recent case law demonstrates the interplay between privacy rights and disclosure obligations in relation to conversations and comments made on social media. While it is true that some Canadian courts have adopted a more nuanced and restrictive approach to the admissibility of social media evidence, it appears that members of the Canadian judiciary are open to admitting social media as evidence if it is both relevant and material to the case at bar. Evidence of this was seen in the cases of Schuster v. Royal & Sun Alliance Insurance Co. of Canada [2009][29] Kent v. Laverdiere [2009][30] and Weber v. Dyck [2007][31] as members of the judiciary went on to establish that conversations which occurred on social media sites were admissible under the “state of mind” exception to hearsay and were subject to applicable disclosure obligations.[32] As such it appears that Canadian courts are willing to balance a litigants’ transparency interest with the reasonable privacy expectations held by users of social networking sites.[33]

Given the prevalence of these social media sites and the information regularly posted to them, social media has quickly become an invaluable tool for litigators. Litigators in particular are increasingly demanding that the content of social media accounts be produced on discovery, and when used appropriately and within the confines of the Rules of Civil Procedure as well as the Rules of Professional Conduct, there is no doubt that social media can be a powerful investigative tool for counsel seeking to gather evidence. That being said, lawyers must always be diligent and consider whether relevant information might be available on their clients social media account, as well as on opposing party’s social media account.  If so, they should be forthwith and list any relevant documents/profiles in their affidavit of documents. To that end they should also request the production of any content from such accounts.

The use of social media as an investigative tool also raises a variety of ethical considerations, and lawyer’s intent on using social media to obtain evidence “must ensure that their actions do not breach their professional obligations.”[34]  The mere presence of a social media account is not sufficient to require its production on discovery and the Rules of Professional Conduct provide lawyers with a variety of ethical considerations and obligations they must evaluate before using social media to gather evidence. The Rules of Professional Conduct prevent a lawyer from communicating directly to another party who is represented by a lawyer, and requires them to act in good faith in the course of their practice.[35]  Although any information that can be accessed by an online search engine is widely considered to be “fair game,” before utilizing social media as an investigative tool, lawyers must ensure that they are not looking past their professional obligations.  Unfortunately, the Rules of Professional Conduct remain somewhat unclear in relation to social media evidence specifically, and as such lawyers in Canada should adopt a conservative approach before using it as an investigative tool.  They should always keep records of their findings and operate in a transparent fashion.  Furthermore, counsel should never “friend” or otherwise request access to an individual’s social media account for the purpose of gathering evidence for use in litigation.[36]  This is especially true when an individual is represented by counsel.  In the event that one does request access to an opposing parties account, the request should never be made under false pretenses or with malicious intent.[37]

Final Thoughts

A review of recent case law demonstrates the interplay between privacy rights and disclosure obligations in relation to conversations and comments made on social media.  As such, it becomes readily apparent that various courts in Canada are still addressing the manner in which social media evidence obtained through sites such as Facebook, Twitter, Instagram and LinkedIn can be used in court.[38] Given the prevalence of these websites and the information regularly posted to them, social media is widely regarded to be an invaluable tool for litigators.

While the social media phenomenon has revolutionized the way humans interact, the law has been slow to catch up. By and large there are no “special” rules or procedures applicable to gathering social media before or during a lawsuit, nor are there special rules for using it at trial.[39] As such, it is vital for lawyers to remain conscious of the new and developing outlets for social media evidence, and to ethically collect that evidence. As the use of social media sites continues to permeate through our society, the potential evidence available to litigators continues to increase. Consequently, by properly applying the Rules of Civil Procedure, the Rules of Professional Conduct, as well as the Canadian Rules of Evidence, lawyers and the parties they represent should be able to benefit from the information contained in social media accounts for many years to come, both in respect to reaching reasonable settlements and as evidentiary tools at trial.[40]

[1] Patrick Marshall, “What You Say On Facebook May Be Used Against You In A Court Of Family Law: Analysis Of This New Form Of Electronic Evidence And Why It Should Be On Every Matrimonial Attorney’s Radar” (2012), online: Alabama Law Review

[2] https://www.sherpamarketing.ca/canadian-social-media-stats-updated-2018-471

[3] Ibid.

[4] Supra note 1.

[5] Ibid.

[6] Mason, Stephen (et al), Electronic Evidence, 2012, (Reed Elsevier (UK) Ltd.)(Robert J. Currie & Steve Coughlan, Chapter 9: Canada) at p. 293.

[7] Ibid.

[8] Supra note 1.

[9] Richard Frank, “Social Media Sites: New For a for Criminal, Communication, and Investigation Opportunities (2011), online: Government of Canada Publications < http://publications.gc.ca/site/archivee-archived.html?url=http://publications.gc.ca/collections/collection_2012/sp-ps/PS14-5-2011-eng.pdf>.

[10] Supra note 1.

[11] Michael Dewing, “Social Media: An Introduction” (2012), online: Library of Parliament < http://www.lop.parl.gc.ca/content/lop/researchpublications/2010-03-e.pdf >.

[12] Supra note 1.

[13] Richard Stengel, Only Connect. Mark Zuckerberg and Facebook Are Changing How We Interact—And What We Know About Each Other, TIME, Jan. 3, 2011, at 43.

[14] Supra note 1.

[15] Supra note 1.

[16] Ibid.

[17] Supra note 1 at 33.

[18] Ibid.

[19] Supra note 1 at 41.

[20] Ibid.

[21] Ava Chisling, “When Facebook and Twitter are not your friends” CBC (2012), online: CBC < http://www.nationalmagazine.ca/Articles/June-2012-Issue/When-Facebook-and-Twitter-are-not-your-friends.aspx >.

[22] Supra note 1.

[23] Supra note 6.

[24] Paul Grimm, “Authentication of Social Media Evidence”, online: (2013) 36:433 American Journal of Trial Advocacy http://www.atyvideo.com/documents/American%20Journal%20of%20Trial%20Advocacy%20Authentication%20of%20Social%20Media%20Evidence.pdf .

[25] Ibid.

[26] Ibid.

[27] Rules of Civil Procedure, RRO 1990, Reg 194.

[28] Supra note 31.

[29] Schuster v. Royal & SunAlliance Insurance Co. of Canada 2009 CarswellOnt 6586, [2009] O.J. No. 4518, 185 A.C.W.S. (3d) 1036, 78 C.C.L.I. (4th) 216, 83 C.P.C. (6th) 365

[30] (2009), 78 C.P.C. (6th) 182, (Ont. Sup. Ct. J.), Master Haberman

[31] 2007 CarswellOnt 3851 (Sup. Ct. J.), Master L.A.M. Pope (WLeC).

[32] Ronald Podolny, When Friends Become Adversaries: Litigation in the Age of Facebook, 33 Man. L.J. 391, 408 (2009).

[33] Ibid.

[34] Laura Brenner, “Social Media Evidence: Ethical and Practical Considerations for Collecting and Using Social Media Evidence in Litigation, online: (2014) ABA Section of Litigation < https://csdaca.org/wp-content/uploads/2015/04/W-47-Evidence-and-Social-Media-ABA-Litigation-Article-Handout1.pdf >.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ronald Podolny, When Friends Become Adversaries: Litigation in the Age of Facebook, 33 Man. L.J. 391, 408 (2009)

[40] Julia Anagnostakis, “The Proof is in the profile: Obtaining Disclosure of Plaintiffs’ Facebook Information” (2011), online: Blaney McMurtry

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