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The (social media) evidence is clear

Litigators need a sophisticated understanding of social media to use it effectively in court
Litigation Legal Report
|Written By Elizabeth Raymer
The (social media) evidence is clear
Sébastien Thibault

Chances are good that you don’t know a single soul who doesn’t have a social media account.  Facebook, YouTube, WhatsApp and other social media networks boast millions of daily users, with Facebook alone having a reported 2.2 billion active monthly users earlier this year, many of whom share a stream of details about their families, vacations and everyday lives.

These details can be goldmines for litigators. With technological advances and an increased use of social and digital media as evidence in cases, litigators today may have significant social media evidence on which to draw, but they must also be aware of their own clients’ use of it.

Indeed, using social media and electronic documents as evidence is becoming so commonplace in litigation that “if your firm is not doing it, you should be asking, ‘Why aren’t we?’ It should be part of everyone’s discovery plan,” says Puneet Tiwari, a Toronto-based lawyer and CEO and co-founder of Evichat Inc., an e-discovery tool that allows lawyers to collect and review mobile communications and social media data from litigants. 

Tiwari says the idea of the app came to him because “almost every one of my clients had mobile-based evidence they wanted to send me, in screenshots,” which can be fake or tampered with and are not searchable, he says. Evichat pulls the data natively from the platforms and makes it easy to search, analyze and export, he adds. The amount of interest in and customers for the app to date, on both sides of our border, indicates the extent to which social media use has become ubiquitous and its increased use in litigation, he says. 

“It’s an odd law firm that says their clients don’t use social media,” and, for many, texting has replaced email as a form of electronic communication and is “almost exclusively” used as evidence over email in family law cases, he says.

Social media evidence is commonly used in family law, when estranged spouses battle each other, as well as in insurance investigations for personal injury claims, and in criminal cases where harassment occurs through social media and/or texting. 

In texting, the use of emoticons, emojis and now “bitmojis” is advancing in litigation evidence, says Jason Wadden, a partner at Goodmans LLP in Toronto, who this year presented at the Ontario Bar Association annual conference and to the Law Society of Ontario on the use of social media in litigation and legal practice. 

Wadden points to international litigation, which has relied on emoji evidence. Perhaps the most colourful case was an Israeli small-claims dispute between a landlord and prospective new tenants, in which the landlord successfully sued for damages based at least partially on emojis in the prospective tenants’ text messages, which the judge agreed indicated an intent to rent the landlord’s apartment. The judge found the couple had “acted in bad faith” by then backing out after the landlord had taken down the apartment listing. And in a Michigan case, the judge agreed with the defendant that the latter was being facetious, not defamatory, in an online comment he made using an emoji that was determined to indicate a joke or sarcasm.

Now, Wadden says, the use of “bitmojis,” or personal emojis, can be used to harass by altering someone’s photo in a bitmoji, for example. Or, where a high school girl has expressed disinterest in a boy but “he keeps sending more eggplant emojis [denoting male genitalia], could that be part of a pattern of harassment?”

Wadden identifies three best practices for using social media in litigation. The first, he says, is to address the need for social media evidence at the beginning of a case. “Social media evidence can disappear quickly,” he says. “Consider that as a possibility in case planning, and do it early.”

Second, involve experts in the collection of evidence to best preserve it if the authenticity of a social media post is at issue later on. When that happens, “if you’re able to gather more of the metadata, that can be very helpful,” Wadden says.

 “If someone posts a photo on social media, there may be a question as to whether that photo was doctored. . . . If you have an in-house or outside technology expert, there may be a determination” of that, he says. “Or, they can at least preserve the information on the post, and then you can later on get an appropriate person to determine what alteration has been made.” Also, experts may appear as witnesses in court, whereas lawyers or members of their firm should not. 

The third issue is addressing “the evolving record” with the client. Some clients, especially younger ones, may want to post information on social media about their court case. However, “that could create new evidence that might have an impact on the case,” says Wadden, and the client should be cautioned in this regard. 

“So, for lawyers, it’s not just gathering and preserving records that exist,” says Wadden, “but making sure there’s not new social media coming from [one’s own client] about issues at play in the case, unless it’s done in a considered fashion.”

What expectation of privacy, if any, do individuals have in their own social media accounts? It’s not as much as they may think. 

“Expectation of privacy is a loaded phrase, and it’s usually used in a criminal context,” says Andrew Bernstein, the Toronto-based practice group leader for Torys’ litigation department. A reasonable expectation of privacy would exist in one’s home, for example, and might include “the top drawer of your dresser . . . but not the garbage left at the curb.”

For litigants, the court’s analysis of social media as evidence will also depend on the circumstances in which a post was obtained, Bernstein says. “If you’re set to ‘private,’ you will know that only ‘friends’ can see a post; but if you accept someone as a friend who you don’t know, there’s no expectation of privacy.”

Evidence must not be obtained by deceptive practices, of course, such as pretending to be someone else on social media to “friend” someone.

Social media evidence also arises in the discovery process and admission at trial, notes Theodore Madison, a partner at Miller Thomson LLP in London, Ont., whose practice includes insurance defence. For discovery, he says, a client’s list of social media sites should be included in Schedule A documentation for discovery, defined by the Law Society of Ontario as “documents in the client’s possession, control or power that the client does not object to producing for inspection.”

As for admissibility of social media evidence, “what the court’s really concerned about is making sure that the electronic data hasn’t been manipulated,” says Madison. In one highly publicized case decided by the Ontario Superior Court of Justice in 2014, R. v. Andalib-Goortani, the judge rejected the Crown’s application for evidentiary use of a digital photograph that was posted anonymously to a website at the trial of a police officer charged with assault during protests against the 2010 G20 summit in Toronto. 

“The metadata was missing, so the judge thought [the photograph] could have been tampered with,” Madison explains. “The court is very concerned about tampering with information, and it’s incumbent on the party at trial to show it hasn’t been tampered with and is reliable.”

But Stockwoods LLP litigator Edward Marrocco believes that today that photo might have been accepted into evidence. “Case law from 2014 onwards would suggest that a Facebook printout is an electronic document,” he says. “As long as you have someone with first-hand knowledge of where that information came from, you’re really getting close to using it without needing an expert,” adds Marrocco, who co-authored “Using Social Media Evidence in Civil and Administrative Proceedings” for the Law Society of Ontario Social Media and Litigation Course in 2018.

“There’s a wealth of evidence out there [and] it would be counterproductive for the courts not to make use of this kind of evidence.” If the admissibility of the photo at the Andalib-Goortani trial were being considered again today, and absent positive evidence that the photo had been altered to change representation, “then yes, it would go in,” he says.

Beyond discovery and evidentiary admission, though, is the profound change that social media has wrought in society — and which can at least assist in dumping individuals into legal hot water. 

“People who’ve never had access to an audience before suddenly have access to one,” says Bernstein. Social media “enhances freedom of expression, but whereas the traditional media has some pretty clear understanding of what they should and shouldn’t publish, people with Facebook accounts have no idea what constitutes the publication of trade secrets,” among other things, he says.