Where Social Media and the Law Intersect

Alex Yiu & Shaunna Mireau

Two types of SM research

• Finding legal information to help answer a client question

• Finding evidence

SM for finding legal info

Research how– Learning to use SM tools

– Video

– Keeping up, RSS feeds

– Intranets; Wikis

Research what– Author added content; Blogs

– Custom Google searches

– Finding things with Facebook, Twitter

Canadian Law Blogs list

Slaw

Custom Google searcheshttp://tinyurl.com/canadianlawfirms:

Twitter

Facebook

Evidence

• What happens with Social Media in litigation?

What are the legal limits of use?

• For gathering information– Office of the Information and Privacy Commissioner of

Alberta Guidelines for Social Media Background Checks http://oipc.ab.ca/downloads/documentloader.ashx?id=2933

– Canadian Bar Association Guidelines for Practicing Ethically with New Information Technologies http://www.cba.org/CBA/activities/pdf/guidelines-eng.pdf

• For participating in SM– CBA Ethical Marketing Practices Using New

Information Technologies http://www.cba.org/CBA/activities/pdf/ethicsguidelines-eng.pdf

Evidence• Social Media as a storyteller

Stupid things people say

• Still tweeting:

Another storyDube v.Young, 2012 ABPC 40 (Judge Skitsko)

• Boy meets girl, they date• He buys her a very expensive mountain

bike; he helps her buy a car• They split up• The court looks at Facebook postings to

help decide if the bike and car were GIFTS or a LOAN

Truth and “Puffery”• Social sites can be misconstrued[41] I accept there are some inconsistencies in the statements made by Mr.

DeWaard to various professionals, but they are not to an extent that it affects my overall assessment of his credibility. While Mr. DeWaard's Facebook profile is not completely consistent with his evidence at trial, I am prepared to accept that Facebook profiles may contain an overly positive perspective regarding one's abilities and interests or a certain amount of puffery. Mr. DeWaard is currently able to maintain a reasonably active life style, but it is less active than before and he can no longer engage in some of the activities he previously enjoyed. I find that Mr. DeWaard's complaints regarding ongoing pain to be credible and well supported by the medical evidence, including by the Defendant's expert Dr. VanZeiden. I see no reason to draw any adverse inferences from a failure to call any witnesses at trial and note that the Defendant's counsel failed to ask any questions regarding Mr. DeWaard's activity level of his former roommates in cross‑examination at trial.

DeWaard v. Capture the Flag Indoor Limited, 2010 ABQB 571 (CanLII), http://canlii.ca/t/2f3p6

Another story• Knott v. Sutherland (2009)

• A woman in the hospital dies

• Her spouse sues the hospital, including a medical resident

• The lawyers can’t find the resident to serve him with the lawsuit

• Application for an Order for substitutional service via Facebook

• A Judge says it can be served through a posting to the resident’s Facebook profile

Privacy settings• Information about an individual litigant:“The principles that emerge from the authorities are as follows. The pages at a

social networking site or internet site including a facebook page is a document for the purpose of discovery and should be listed in a party’s affidavit of documents, if relevant (“relating to any matter in issue”). The mere existence of a facebook account is insufficient to require its production on discovery. Whether it is listed in the affidavit of documents or not, the responding party is entitled to cross-examine on the affidavit of documents to determine firstly if it exists, secondly the relevance of the contents, and finally production of the relevant portions for which privilege is not claimed. Access to the party’s facebook account through the party’s password is overly intrusive unless the party is claiming as part of his or her damages claim a level of disability that inhibits his or her computer time. In those circumstances, a forensic examination of the facebook account may be necessary. “

Ottenhof v. Ross, Kingston Police Services Board et al, 2011 ONSC 1430 (CanLII), http://canlii.ca/t/2g1rc para. 3

Another storyStewart v. Kempster, 2012 ONSC 7236 (CanLII)

• Lady gets in a car accident and sues for compensation - permanent serious impairment including depression

• She goes on vacations and stores vacation photos on Facebook behind privacy settings

• Her timeline is public• The other driver’s lawyers ask for access to

all vacation photos from her Facebook account

Stewart v. Kempster, 2012 ONSC 7236 (CanLII) (cont’d)

• [30] I adopt the views of Myers J. in Desgagne v. Yuen, [2006] B.C.J. No. 1418 (B.C.S.C.), where he said the following at para. 20:

• It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party's filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed.

Stewart v. Kempster, 2012 ONSC 7236 (CanLII) (cont’d)

• [31] The defendants’ request to search the plaintiff’s private correspondence and other data in her Facebook account in the hope that they might find something useful is akin to searching the plaintiff’s filing cabinet. It is a fishing expedition and nothing more.

• [32] One cannot argue that because the Timeline disclosed two comments that are arguably relevant, the defendants should, therefore, have access to everything else in the plaintiff’s Facebook account. The entire Timeline is publicly accessible, so the defendants have seen all that there is to see under that category. It is not as if part of the Timeline is public and part is private, as was the case with the photographs in Murphy. The contents of the Timeline do not support any inference as to the contents of correspondence and other media contained in the private portion of the plaintiff’s Facebook account. The defendants’ request is based upon nothing more than speculation.

• [33] The defendants have not persuaded me, on evidence, that any relevant documents exist on the plaintiff’s Facebook account which were not disclosed in her Affidavit of Documents. The motion is, therefore, dismissed.

How to get the Story to a Judge

• Preserving Social Media evidence– Printing

– Screen shots

– Copy and save video/photos

• Remember the Ethical Guidelines

Why You Might Consider Applying for a Facebook Preservation Order

• The information to be preserved is relevant and material as it could reasonably be expected to:

a) significantly help determine one or more of the issues raised in the pleadings; or

b) to ascertain evidence that could be reasonably be expected to significantly help determine one or more issues raised in the pleadings

• The information to be preserved is under the control of the Plaintiff/Defendant

• The information to be preserved is not privileged

• The information to be preserved has been omitted from the Plaintiff’s/Defendant’s Affidavit of Records

What a Facebook Preservation Order Gets You (Potentially)

• Readable electronic copies of all pictures (either .jpeg,.tif, or .pdf versions) and videos (either .mp3 or .mp4 versions) posted on the Facebook site;

• Readable electronic copies (in Adobe .pdf versions) of all information, postings, data, and comments as set out in (or that was saved by the Plaintiff as having been previously set out in):

i. The “Home” tab to the Facebook site;

ii. The “Wall” tab to the Facebook site;

iii. The “Info” tab to the Facebook site;

iv. The “Discussion” tab to the Facebook site;

v. The “Events” tab to the Facebook site;

vi. The “Link” tab to the Facebook site;

vii. The “Notes” tab to the Facebook site

• An electronic copy of a list of all Friends set out on the “Friends” tab to the Facebook site• An electronic copy of a list of all “Likes” set out on the “Likes” tab to the Facebook site• An electronic copy of all personal messages and links as set out under the “Messages”

tab to the Facebook site

How often does the law and SM intersect?

• CanLII– Facebook – 1157 results

– YouTube – 99 results

– “social media” – 91 results

– Twitter – 69 results

– MySpace – 27 results

– LinkedIn – 20 results

– All in 2013 as of Feb 17, 2013 – 47 results

QUESTIONS?