Social media can create evidence too. Tracey Stretton warns of the dangers and reviews some of the cases which show its increasing importance.
There is simply no avoiding it – social networking is rapidly becoming the new way of communicating. Not only that, but we are doing far more than sending electronic messages or chatting online - we are interacting and engaging in far richer ways. Apparently a billion pieces of content (comments, messages, photos, video clips and so on) are shared daily on Facebook. The site now has 800 million active users (roughly one in nine people on the planet). Google+ debuted in September bringing new communication features such as Circles, Huddles, Sparks and Hangouts which allow its 40 million plus members to share information in increasingly tailored and novel ways.
These facilities, created initially to keep us in touch with friends and family, can be used for other purposes as was all too apparent in the riots which swept across the UK this summer. Rioters using Blackberry handsets were able to rapidly mobilise and coordinate acts of vandalism, theft and violence using Facebook, Twitter and BlackBerry Messenger (BBM). Some charged with inciting disorder have already been imprisoned and the courts have relied upon social networking evidence.
Businesses are increasingly creating online brands and turning to sites such as Twitter, Facebook and LinkedIn to market their services and strengthen their relationships with clients and customers. Predictions are that by 2014 many businesses will be relying more on social networking than e-mail.
Evidence will gather where people are interacting and spending time and already evidence from social networking sites is beginning to feature in law suits and criminal proceedings. It has become essential therefore for lawyers to keep pace with new technologies, new sources of evidence and evolving evidentiary and ethical standards as legal practice moves ever further into the electronic world.
The spontaneous and candid things we say can incriminate us
In the UK, Martin Hartshorn, posted this comment on Facebook during the August riots: 'Whose up for a riot tonight in town?'. He also made racist comments: 'Let's do our riot different. Let's burn all the P*** shops and takeaways'. 'And the Islamic centre. We can't forget that.'
He was imprisoned after he admitted encouraging a riot and publishing inflammatory racist material on Facebook during the riots. Jordan Blackshaw and Perry Sutcliffe of Cheshire were also sent to prison for four years each after admitting to using Facebook to incite disorder during the riots.
In the USA, in People v Liceaga[[2009 WL 186229 (Mich. Ct. App. Jan. 27, 2009). See also United States v Villanueva, No. 08-12911, 2009 U.S. App. LEXIS 3852, *7 (11th Cir. 2009).]] a Michigan murder trial, photographs were discovered on the defendant's MySpace page of the defendant displaying a gang sign and the gun allegedly used to shoot the victim. The prosecution sought to admit this as evidence of intent and planning of the alleged crime. The appellate court upheld the admission of the MySpace evidence, finding that its probative value was not substantially outweighed by the danger of unfair prejudice.[[Liceaga, No. 280726, 2009 Mich. App. LEXIS 160 at *7.]]
Companies too face a real and increasing risk of unlawful or disreputable conduct being exposed in electronic messages and penalties. Last December, for example, the Croatian Competition agency reported that proof of a price fixing cartel was found in SMS messages between the chairmen of two media companies. One of the chairmen was unfortunately killed in a terrorist attack and text messages recovered from his mobile phone for the purposes of a criminal investigation were leaked to the press.[[http://www.concurrences.com/article.php3?id_article=34820]]
Electronic messages are beginning to play a role in civil litigation too. In March The Guardian reported that two-thirds of lawyers surveyed in the US said that Facebook was the 'primary source' of evidence in divorce proceedings. Facebook evidence has also featured in personal injury actions in Canada and the US and in a defamation case in the UK. In Bishop v Minichiello, a British Columbia court found that a plaintiff's late-night computer usage on Facebook, reflected in log in/log out records on his hard drive, was relevant evidence in his personal injury claim against his employer.[[B.C.J. No. 692 (S.C.J.) (2009)).]]
Instant Messenger services have become very popular as a business communication tool. Bloomberg, for example, provide stockbrokers and financial professionals with a closed messenger service. These communications are immediate and conversational, bringing with them the risk of unguarded communications and potentially valuable evidence. They too are capable of being collected and reviewed and there has been a notable increase this year in both the US and the UK in the use of this type of evidence in banking-related litigation.
Is social networking evidence valuable?
The spontaneity and casual nature of social networking means we are probably more candid than we would be when writing even an e-mail and certainly a letter. Most people give very little thought to the consequences of what they say on social networking sites and do not realise that this information is often publicly available or can be obtained by litigants or law enforcement agencies even where it is not. Whilst some use privacy settings to restrict access to their profile pages on sites like Facebook, others do not and their information is available and searchable through Internet search engines like Google. Even deleted information is not beyond reach. Facebook recently faced an audit by the Irish data protection commissioner after complaints were lodged by Max Schrems, an Austrian law student who discovered that Facebook was holding 1,200 pages of personal data about him, including every message he had ever sent, much of which had been 'deleted'. It does not require a big leap to imagine this sort of information being requested and used in a legal matter.
The recent case of Re Mumtaz Properties Ltd; Wetton (as Liquidator of Mumtaz Properties Ltd) v Ahmed and Others[[ EWCA Civ 610.]] highlights once again the fact that contemporaneous documents are critical to the fact finding process to corroborate oral testimony. If they are not produced under circumstances where their availability would be expected, the court can draw adverse inferences. As the judge in that case, His Honour Judge Simon Brown subsequently pointed out at a seminar:
'E-mails, texts, twitter postings and the like are often the most revealing and reliable contemporaneous evidence of what someone said or thought at a particular time. .... Memories are notoriously false and self serving for any fact finding judge'.[['Costs Management: Is It a Woozle', a paper delivered by His Honour Judge Simon Brown QC at a seminar hosted by the Practical Law Company in Birmingham on 18 March 2011.]]
Duties to disclose
The electronic information stored on social networking sites is generally subject to disclosure or discovery in both criminal and civil proceedings. The Civil Procedure Rules define a document broadly as 'anything in which information of any description is recorded'. This explicitly includes e-mail and other electronic communications that are 'readily accessible' from computer systems and other electronic devices and media but the overriding principle is proportionality, which means the value of the evidence must be weighed against the cost of producing it and what is at stake in the case.
Accessibility assessments have become important since evidence that is not reasonably accessible may not need to be produced. You need to work out where evidence is stored and how you will get to it. Is it on the hard drive of a laptop used to access Facebook, on a smartphone or on the servers of Facebook Inc? How do you get to it and what will it cost to extract the information needed? Facebook does provide users with a download facility to create an archive of their own data posted to the site and some parties will agree to provide the information required. In other cases where a log of all activity on a site is required it might be necessary to approach the service provider responsible for hosting the site to produce the required data, where invariably a court order will be required. A computer forensic expert can help assess where the information required is and the cost of extracting.
Evidence is of course admissible only if relevant. Relevance is usually fairly easy to assess on the facts of a case. In Offenback v L.M. Bowman, Inc,[[WL 2491371 (M.D. Pa. June 22, 2011).]]a US personal injury case, the plaintiff claimed physical and psychological impairment. The court agreed that photographs and postings on Facebook and MySpace were relevant since they showed that the plaintiff continued to ride motorcycles, went hunting and rode a mule. While the US rules on relevance are slightly different, this would certainly be relevant evidence in any jurisdiction.
Privacy is a contentious area and there have been a number of cases in the US where parties have claimed that social networking evidence is private and not discoverable. For example, in Zimmerman v Weis Markets, Inc, the court held that an individual who voluntarily posts pictures and information on social websites does so with the intention of sharing and cannot later claim any expectation of privacy, especially because the privacy policies of Facebook and MySpace state that any information posted may become publicly available at the user's own risk.[[No. CV-09-1535 (C.P. Northumberland May 19, 2011). See also McMillen v Hummingbird Speedway Inc, (C.P. Jefferson Sept. 9, 2010) and Romano v Steelcase, Inc, 907 N.Y.S.2d 650 (Sept. 21, 2010).]]
Evidence must also be authentic in order to be admissible and this is the issue which has most concerned the courts. You must be able to show that the evidence is what it claims to be. How do you know that a comment made on Facebook was authored and posted by a specific individual and not by someone else? Is the message produced in court is the same as the original message stored on Facebook's servers? Can you show that the Blackberry BBM service safely and securely delivered messages from person A to B without interception or alteration? Is there a chain of custody from the original author to the present holder of a message and can you prove it has not been tampered with?
There are many ways of proving that evidence is what its sponsor says it is. You can rely on the evidence of a person with personal knowledge of the social media content, such as a person who wrote it or expert evidence or you can show that the evidence has circumstantial indicia of reasonableness( for example, the site shows a photo of the alleged author and contains information known to be accurate about him or her, or includes information of which they have unique knowledge). You can also show that the evidence is the product of a system or process capable of producing reliable and accurate results, which usually involves an expert's evidence.[[In the US these are listed in Federal Rules of Evidence (Rule 901).]]
In Applause Stores Productions Limited & Matthew Firsht v Grant Raphael[[ EWHC 1781 (QB).]], a false Facebook profile and group were created and defamatory information was published about one of the claimants. The claimants' solicitors obtained a disclosure order against Facebook Inc for disclosure of registration data provided by the user responsible for creating the false material including e-mail addresses and the IP addresses of all computers used to access Facebook by the owner of the e-mail addresses. The evidence established that the false profile and group were created by a computer at the defendant's home. He alleged that a stranger visiting his flat had used his computer, without permission, and created the false profile and group. A composite activity log of the defendant's Facebook usage was created. The judge considered the pattern of usage apparent from this log and the only sensible inference was that the defendant had created the false profile and group and was responsible for publishing the defamatory material.
In Griffin v State[[2011 WL 1586683 (Md. Apr. 28, 2011).]]a prosecution witness in a murder case claimed that the defendant's girlfriend had threatened him prior to testifying. The State introduced into evidence a printout from her MySpace page for the purpose of corroborating this witness' testimony that contained the following comment:
'FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!'
The defendant's girlfriend was not questioned about the pages. The State tried to authenticate them by relying on the evidence of an investigating officer who tried to link the girl and the profile by referring to her face in the profile photo, her date of birth and residence location. A higher court found that the authentication provided was insufficient because someone other than the girlfriend could have created the MySpace profile and posted the comment. The court was concerned that anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password. The Court suggested that one way of authenticating these postings would be to ask the alleged creator of the page if she had in fact created it. Another option was to search the computer of the person who allegedly created the profile and examine its Internet history and hard drive to determine whether that computer was used to create the social networking profile and posting in question. [[See also State of Connecticut v Robert Eleck, (AC 31581) Bishop, Beach and Sullivan, Js. Argued May 31—officially released August 9, 2011.]]
Tips for handling newer sources of evidence
Judge Paul W. Grimm points out in the case of Lorraine v Markel American Insurance Co[[241 F.R.D. 534 (D. Md. 2007).]], that the 'complexity' or 'novelty' of ESI, with its potential for manipulation, requires greater scrutiny of 'the foundational requirements' to support the admissibility of this evidence and bolster its reliability. According to Judge Grimm, 'The key for lawyers is to think carefully about how they will authenticate social networking evidence well in advance of the trial or hearing, and it would be wise to be prepared to do so in more than a single way'.
If evidence is collected by a forensic expert following proper procedures then there is a greater chance that it will be admissible and if its reliability is questioned the expert can testify about the procedures followed.
'Faux friending' where a lawyer sends or arranges for a friend request to be sent to someone in an attempt to gather information for legal proceedings has been found to be unethical in the US, and no doubt similar ethical standards apply in the UK.[[In Ethics Opinion 2009 the Philadelphia Bar Association Professional Guidance Committee addressed the propriety of an attorney discovering information from another person's Facebook profile.]]
Emerging forms of evidence
Google+ allows people to engage in group video chats and online games like Xbox® Kinect allows users to play interactive games and post videos of their activities to Facebook or Twitter accounts. In a personal injury case, a video of a claimant allegedly suffering from physical injuries playing a game that requires rigorous physical activity may be valuable evidence.
There is no doubting the value of social networking evidence. In the US there is a strong likelihood that the discovery of social networking evidence will be permitted in civil litigation and that privacy objections will be outweighed by the weight and relevance of the information. In England, there is no reason why this evidence should not be disclosed in litigation provided that it is relevant and proportionate to do so. It is, however, susceptible to manipulation and is being scrutinised carefully by the courts to ensure it is authentic (or is what it is claims to be) before it is relied upon.
Tracey Stretton is a legal consultant at Kroll Ontrack
She gratefully acknowledges the assistance of Judge Paul Grimm, Chief United States Magistrate Judge for the US District Court for the District of Maryland, and Mark Surguy, a Partner at Eversheds.