MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 227
authorship. While YouTube is the most common video sharing site, other
emerging video sharing sites, such as Ustream and BlogTV, that are
devoted to real-time streaming video, may eventually also find their way
into court.
III. EVIDENTIARY LIMITATIONS
Lawyers and courts wanting to use social networking evidence must
consider issues involving the rules of evidence. Many precedents and
statutes that courts contemplate in social networking cases were
established in the context of a world based on paper and ink documents,
rather than data created, stored and presented electronically. The
challenge for courts is to remain faithful to established principles, while
interpreting and applying them in a manner that is sensitive to the
practical realities of new technologies.
A. General Evidentiary Rules of Procedure
Generally, both Canadian and American evidentiary laws require the
authentication of evidence; this applies to both criminal and civil trials.
US rules on admissibility tend not to differentiate between electronic
evidence and traditional evidence, often admitting electronic evidence as
“writing”. For instance a California court, in dealing with a photograph
from a social networking site, utilized laws surrounding writing. 22 In
addition to American federal laws that limit how social networks can
release private content, a variety of evidentiary rules at both the federal
and state level will apply, depending on the nature of the proceeding.
In Canada, the federal rules of evidence that regulate criminal trials
recognize electronic evidence as part of the recommendation of the
Uniform Law Conference of Canada. 23 The Personal Information Protection and
Electronic Documents Act 24 modernized the Canada Evidence Act. 25 It
22
People v Beckley, 185 Cal App 4th 509 at 2 (Cal App 2 Dist 2010) [Beckley].
23
See Uniform Electronic Evidence Act (Uniform Law Conference of Canada, 1997),
online: .
24
SC 2000, c 5, s 56 [PIPEDA].
25
Canada Evidence Act, RSC 1985, c C-5 [Canada Evidence Act].