♬ Now you need to publish every movement And every single thought to cross your mind
I’m told the Twitterverse is full of rubbish But most of us are actually quite refined
We validate each other’s insecurities And brag about the gadgets that we’ve bought
We laugh out loud at every hint of jolliness And try to self-promote without being caught
You’re no one if you’re not on Twitter…♬
Lyrics and music by Ben Walker.
On Monday Aug 13, the Canadian Judges Forum together with the Canadian Bar Association at the Canadian Legal Conference in Vancouver BC, held a session entitled “Social Media in the Courts”. Chaired by Judge Gary Cohen of the Provincial Court of British Columbia, the panel consisted of Jean-Francois DeRico, Donald Richards and your humble scribe.
In this session we examined the role that social media in general, and Facebook, YouTube and Twitter in particular, are having in and out of the court. Given that Facebook currently has over 800 million users (and is aiming at 1 billion shortly), YouTube has over 2 billion views daily and Twitter has 140 million users who post 340 million tweets daily, social media’s explosion over society and the legal world is hard to ignore.
What is so interesting about social media is its immediacy. Courtesy of smart phones and other mobile devices, text, images and video can be captured, edited, posted, tweeted and viewed by the world at large moments after the events in question have occurred. Mobile devices and social media have given jurors, judges and others the ability to reach out to the world and delve deep into someone’s private life. Social media is also a stream – what is there today can be gone tomorrow – raising issues as to preservation of relevant material. Social media sites may have settings that limit the viewing of pictures, posts and more only to ‘friends’ (such as Facebook) – or it may broadcast information to the world at large (Twitter and YouTube).
In the presentation, we looked at the use of Social Media evidence in court and other administrative tribunals. We saw how employees have posted to Facebook accounts statements that were threatening, insolent, or contemptuous of management and which, eventually, led to their dismissal (and consequently raised issues of access to and preservation of such evidence). Donald Richards commented on the case of Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC L.R.B.) where he successfully acted for the employer in such a situation.
We examined the use of social media by lawyers, judges, witnesses, jurors, friends and relatives of accused persons and others. It should not come as any surprise that members of the public make questionable postings to the web (including such things as death threats on Facebook: “…if you are a priest, judge, cop, lawyer, commoner, or teacher… I‘m bringing death with me this time around” R. v. Lee, 2010 ONCJ 291 (CanLII).
What is surprising is that lawyers themselves have made such posts (“Evil, Unfair Witch” in referring to a judge in one case and “Judge Clueless” in another) and yes, even judges seem to be suffering from the same affliction (in one case, posting questionable risqué photographs to social media). What is amazing is the lack of realization that somehow certain people are not going to notice their posts (this begs the question as to why they posted it in the first place if they didn’t intend that it was to be seen..but I digress).
Can you have ‘fishing expeditions’ in someone’s Facebook pages? (Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) – 2009-02-20 found that an Order of preservation could be made but production of all site materials was held to be overly broad. Cross-examination was allowed on a supplementary affidavit of documents to learn what relevant content, if any, was posted.
Can you seek metadata (when someone was accessing Facebook and other social media) in addition to the material that they were posting or viewing? The case of Bishop v. Minichiello, 2009 BCCA 555 (CanLII) had such a claim for metadata. While it would appear that this would be relevant and ordered in some cases, it was not ordered in the Bishop case.
Of course it is not ethical to hack into someone’s Facebook pages. But what about posting as a ‘friend’ in order to gain entry? Ethics rulings from various jurisdictions have clearly stated that it is not ethical to hide your real identity on Facebook or other Social Media for the purposes of trying to get inside someone’s pages. I would submit that at least In BC, this is consistent with the Professional Conduct Handbook. Furthermore, trying to become a friend of someone who is an opposing client would be communicating with a party who is represented by counsel and clearly offside.
Can you seek to have an ex-parte order that preserves all of a person’s Facebook pages without first establishing that is anything relevant and probative on those pages? How about the deletion of such evidence – does timing come into play? (i.e. before litigation, once litigation is reasonably foreseen, after litigation is started). How do you deal with the fact that the privacy settings on Facebook restrict you from viewing potentially relevant evidence? As such, how do you establish when this private and relevant evidence is on someone’s private Facebook pages?
How does a lawyer handle negative postings to social media by ex-and-disgruntled clients? Do you seek to have the comments removed (thereby potentially giving the comments even greater publicity) or do you seek to have them ‘buried’ in a sea of positive comments?
Since the web reaches virtually everywhere…what about unauthorized practice of law concerns? There are a number of legal advice websites where people post legal questions and lawyers post answers. Questions of confidentiality, conflicts, the inadvertent creation of a solicitor-client relationship as well as the reliance by others on the advice so given (with the possibility of a negligence suit) come to mind.
If a minor is allegedly defamed on Facebook – can her guardian apply for an order for the ISP to release the name of the person who made the posts – as well as keep the minor’s identity together with the alleged defamation confidential? This was the factual situation in A.B. by her Litigation Guardian, C.D., v Bragg Communications. The decision on these issues is awaited from the Supreme Court of Canada.
As you would expect, social media has been used to serve legal proceedings (Facebook and Twitter) in Australia, the UK and in Canada.
There is the whole area of ‘accidentally found’ evidence and the use of spyware, keylogging software and other interception of communication tools by parties. Computers have been hacked and stealthy software has been installed without the knowledge of the other party. Material that has been collected has included chat sessions, photographs that were posted or sent, emails, website visited and screen-shot captures and email solicitor-client communications of the opposing side with their counsel and others. The court has to deal with this “odious” material and how and when it will be admitted into evidence. Along the way there are Criminal Code implications (s. 184) and the new tort of Intrusion by Seclusion (the Ontario Court of Appeal decision in Jones vs. Tsige).
Now we have Twitter and other social media being used by courts, jurors, lawyers and others. No less that Edward Greenspan has commented on the use of social media by lawyers and in particular how social networking websites can be mined for information about potential jurors.
He has said that lawyers can “go way beyond what we’re supposed to know about jurors,” and that “It’s very painless to do it. It’s quick, it’s very inexpensive and with the click of a mouse you can do it.” “So you can know everything you need to know about potential jurors. All kinds of information, from education to their religious affiliation, political campaign donations probably, who knows?”
Lawyers are not the only ones using social media for investigations. The New York Times published on March 17, 2009:
“Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock. Eight other jurors were doing the same thing”
Lastly there is the issue of the use of social media in the courtroom itself. B. William Sundhu in a paper entitled: “Social Media and the Courts” stated:
“There is little justification for restricting use of new media in many civil proceedings and aspects of criminal trials.“
Accordingly, it was timely to see that the British Columbia Court of Appeal, the Supreme Court of British Columbia and the Provincial Court of British Columbia have joined other courts such as the Supreme Court of Canada in adopting a new policy concerning the use of electronic transmission devices in courtrooms, effective September 17, 2012.
Under the new policy, accredited journalists and lawyers will be able to use electronic devices to send or receive text in the courtrooms of the Supreme Court and the Provincial Court. The Court of Appeal has taken a more liberal approach. Since cases proceed on the written record on appeal with no witnesses present, a more permissive policy will be in place, which will also allow members of the public to use electronic devices to send or receive text.
As in the past, in all three Courts, members of accredited media will be permitted to audio record court proceedings. The audio record may be used only for the purpose of confirming the accuracy of notes taken, and may not be broadcast or used in any other way.
The process will work as follows: According to a news release, an Accreditation Committee comprised of professional journalists will receive and respond to requests from media personnel to be accredited. A person approved for media accreditation by the Accreditation Committee will be required to review the Courts’ Policy on the Use of Electronic Devices in Courtrooms, and sign an Undertaking to adhere to its terms. Members of accredited media will be issued photo identification cards to be worn in the courtroom. Media accreditation is valid for a three year period and can be renewed.
The Courts has stated that “the adoption of these policies reflects an awareness of the increasing importance of social media in dissemination of information and media reporting. It also reflects an appreciation of the important role that media plays in fostering public knowledge of and confidence in the courts as an essential institution in our democratic society.”
As you can see, social media and social media content raise serious issues for the judiciary, with regards to independence, integrity and ethical standards, admissibility of evidence, the availability of ex parte information, the extent of judicial notice, practice rules, the right to a fair trial and juror conduct. It also raises serious issues for lawyers and regulators alike in coming to grips with this explosion of information and how it can be legally, ethically and professionally used in practice.
Despite the ethical traps and problems, lawyers, judges and courts have to contend with the growing assertion that you are no one if you are not on twitter…