Can you / should you / do you rely on the product of search engines as evidence in civil or criminal matters? Do you base legal advice on what you find on search engines, or on the use made of them?
A recent article in Canadian Lawyer canvasses some of the possibilities.
The Ontario Superior Court held that one could not establish facts by showing how often certain terms were used in Google searches. That was for the purpose of the certification of a class action.
However, showing previous use or actual use of trade marks can be done by searching for them. A number of judicial decisions have confirmed that.
Is the law of evidence clear enough on this kind of issue? Is the Superior Court decision right, in your view (given that the judge who decided it is now Chief Justice of Ontario)? How firmly does one need to establish ‘facts’, or is the nature of a ‘fact’ different depending on your legal purpose for using it?
What – if anything – should be done?