“The Internet isn’t as permanent as we think,” says professor Karen Eltis, “It’s ephemeral and that frustrates access to evidence and even to precedent.”
Eltis has written about and continues to research the phenomenon of link rot — hyperlinks that point to web pages that are no longer available — or reference rot, where the links work but he information is no longer present.
“One American scholar has called it precedent in the wind,” she says.
Eltis, who wrote Courts, Litigants and the Digital Age Law, Ethics and Practice in 2012 is working on a second edition funded by the Canadian Internet Registration Authority Community. The book will explore issues that have arisen since 2012.
She says the legal profession needs to be careful about what information it cites in cases as some links are more likely to disappear than others.
At a Canadian Bar Association conference last week she was on a panel about how social media evidence is different and can be ever changing.
“Not only can things appear to have changed, judges and lawyers need to be aware when dealing with social media evidence that you can’t just do a screen capture of Facebook or print out of an e-mail because it can easily be changed,” she says. “Everyone needs to be aware of the metadata — the data about the data. My caution is that we do not treat social media evidence in the same way. Think of SnapChat photos — it doesn’t really disappear.”
Cases can end up in appeal where links originally provided as evidence simply disappear.
She points to a New York Times article last year that indicated 49 per cent of the hyperlinks in U.S. Supreme Court decisions no longer work. Jonathan Zittrain, who teaches law and computer science at Harvard, said 75 per cent of links in the Harvard Law Review since 1999 no longer function.
“Why is that important? When they are in court decisions or when offered by attorneys and these links disappear it has severe consequences to transparency and access and reliability,” says Eltis.
Part of Eltis’ research looks at the issue of when transparency online is not properly thought out you can end up with significant unwanted consequences and create access to justice issues.
“Judges and lawyers and litigants and self-represented litigants need better awareness around this,” she says.
She says recent cases of cyber-bullying and cybercrime have put the importance of evidence produced and stored with social media tools at the centre of high-profile legal debates and decisions such as A.B. v Bragg Communications Inc.
Eltis says when courts put decisions online automatically and in error, they can be difficult to correct or take down. The court may redact the information but it may have already been proliferated and individuals can be humiliated.
“I know a lot of lawyers tell clients in employment matters that they would be better off not pursuing a matter because it may go online as many administrative tribunals put things online the second they come out,” says Eltis.
She says the United States Court of Appeals for the Ninth Circuit is creating a public database with opinions cited in pdf. As well, Harvard professor Zittrain came up with a database called perma.cc — a “Noah’s ark” of information and links.
Eltis says if lawyers are citing authorities found on the Internet, they need to be aware of the phenomenon of link rot, metadata, and consider attaching an appendix pdf to the version of the web site they are referring to in cases.
“We can point to certain links that are more reliable than others and be more discriminating online and not cite everything — some appear are more reliable than others and there are a number of indicia that are being developed towards that end,” she says.