MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
MLJ Volume 36-1.pdf - Robson Hall Faculty of Law MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
274 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 the other has failed to do so, will be accountable for the costs it has caused.” 234 H. Authentication, Context, and Prejudice Social networking evidence in civil trials is far less likely to face a rigid admissibility test or the same evidentiary burdens that occur in a criminal trial. Prejudicial evidence may be more relevant to damages or the relationship between the parties than in a criminal context. Furthermore, there is less concern over authentication and the quality of evidence. Pictures or videos taken from a social networking site may be admitted, even if they are grainy or of poor quality. A federal court admitting YouTube videos in a royalty dispute commented: “The Court has viewed the videotapes and while not likely to win any award for cinematography, they may be no worse, for example, than the quality of some surveillance videos used in trials.” 235 This does not mean that authentication and contextualization are unnecessary. Where one party attempts to introduce evidence they claim to have received from a social network, the courts may require them to disclose how they obtained the evidence and explain its relevance. In Knight v Barrett, 236 a New Brunswick court asked the party attempting to present evidence to annotate a Facebook printout and provide details on how they came to possess the printouts. A Kentucky court noted that in a civil trial, a photograph taken from Facebook did not require a high level of authentication as testimony describing the subject matter of the photo would suffice. 237 The court acknowledged that while photos can be faked or altered, it is up to the litigants themselves to challenge the evidence and put forward those allegations for consideration. Social networking evidence may be denied admittance if the only purpose is to challenge the credibility of a claimant or to put the litigant in an unflattering light and it is highly prejudicial. While this is a general evidentiary rule, it is especially important in social networking cases where profiles may contain highly embarrassing information that may be 234 Schuster, supra note 169 at para 48. 235 Society of Composers, Authors & Music Publishers of Canada v Maple Leaf Sports & Entertainment Ltd, 2010 FC 731 at para 31 (available on WL Can). 236 Knight v Barrett, 2008 NBQB 8 at para 8, 331 NBR (2d) 199. 237 Lalonde v Lalonde, 2011 WL 832465 (Ky App).
Social Incrimination 275 unconnected to the litigation. In Kinlock v Edmonds, 238 a female youth sued a police officer who tethered her while in police custody. The court denied attempts to admit photos of the plaintiff using drugs obtained from her Facebook page, recognizing the defendant’s strategy of trying to portray the plaintiff in an unflattering light. On the other hand, had the case been a child custody dispute, drug use by one of the parties might have been highly relevant to their parenting ability. Courts should be careful when dealing with printouts or testimony from a social network. Material posted by a litigant must be differentiated from material that may be posted by an acquaintance or automatically generated by the system. While a photograph posted by a friend featuring a plaintiff or a defendant may have relevancy, most social networking sites allow friends to comment or leave posts on an individual’s page without approval. For example, in an employment law case, an Alberta court overturned an employee’s dismissal for allegedly making harassing comments. The court concluded that another individual without approval likely made the comments, and the mere presence of statements on the employee’s Facebook wall had no relevance to the employee’s ability to perform their job. 239 At least one recent decision appears to show a judge misinterpreting how social networks function. In a child custody dispute, an Ontario judge criticized a father for uploading a video of his daughter to YouTube and juxtaposing it next to an unsavory video. 240 While the father’s decision to upload a video may have been questionable and relevant, many social networks such as YouTube or Facebook dynamically generate advertisements or related content, often based on the computer settings or search terms of the person viewing the pages. Courts should ensure that only pictures, video or posts are admitted as evidence and not peripheral advertising or related links. I. Use of Social Networking Evidence Social networking evidence has uses in a variety of different suits. 238 Kinloch (Guardian ad litem of) v Edmonds, 2008 BCSC 1684 (available on WL Can). 239 Alberta Distillers Ltd v UFCW, Local 1118, 2010 AWLD 1108, 2009 CarswellAlta 1467 (WL Can). 240 Bekeschus v Doherty, 2011 ONCJ 232 at para 23 (available on WL Can) [Bekeschus].
- Page 235 and 236: Social Incrimination 223 on Faceboo
- Page 237 and 238: Social Incrimination 225 obtained a
- Page 239 and 240: Social Incrimination 227 authorship
- Page 241 and 242: Social Incrimination 229 convenient
- Page 243 and 244: Social Incrimination 231 enforcemen
- Page 245 and 246: Social Incrimination 233 should suf
- Page 247 and 248: Social Incrimination 235 prevents s
- Page 249 and 250: Social Incrimination 237 the eviden
- Page 251 and 252: Social Incrimination 239 arrest whe
- Page 253 and 254: Social Incrimination 241 prosecutio
- Page 255 and 256: Social Incrimination 243 used to re
- Page 257 and 258: Social Incrimination 245 video with
- Page 259 and 260: Social Incrimination 247 exaggerate
- Page 261 and 262: Social Incrimination 249 showed tha
- Page 263 and 264: Social Incrimination 251 3. Incrimi
- Page 265 and 266: Social Incrimination 253 fortunate
- Page 267 and 268: Social Incrimination 255 one of tho
- Page 269 and 270: Social Incrimination 257 by judge a
- Page 271 and 272: Social Incrimination 259 30.02(1) E
- Page 273 and 274: Social Incrimination 261 Nova Scoti
- Page 275 and 276: Social Incrimination 263 private Fa
- Page 277 and 278: Social Incrimination 265 woman fell
- Page 279 and 280: Social Incrimination 267 oversight
- Page 281 and 282: Social Incrimination 269 an acciden
- Page 283 and 284: Social Incrimination 271 preserve r
- Page 285: Social Incrimination 273 followed a
- Page 289 and 290: Social Incrimination 277 that requi
- Page 291 and 292: Social Incrimination 279 While ther
- Page 293 and 294: Social Incrimination 281 issues aft
- Page 295 and 296: Social Incrimination 283 University
- Page 297 and 298: Social Incrimination 285 new forms
- Page 299 and 300: Pine Tree Justice: Punitive Damage
- Page 301 and 302: Pine Tree Justice 289 “exemplary
- Page 303 and 304: Pine Tree Justice 291 account of th
- Page 305 and 306: Pine Tree Justice 293 $1,000,000 wa
- Page 307 and 308: Pine Tree Justice 295 The difficult
- Page 309 and 310: Pine Tree Justice 297 nature, punit
- Page 311 and 312: Pine Tree Justice 299 B. Confusion
- Page 313 and 314: Pine Tree Justice 301 damages. It w
- Page 315 and 316: Pine Tree Justice 303 4. Analysis T
- Page 317 and 318: Pine Tree Justice 305 respective de
- Page 319 and 320: Pine Tree Justice 307 trial judge,
- Page 321 and 322: Pine Tree Justice 309 court and pun
- Page 323 and 324: Pine Tree Justice 311 in the absenc
- Page 325 and 326: Pine Tree Justice 313 suffered? In
- Page 327 and 328: Pine Tree Justice 315 denied even c
- Page 329 and 330: Pine Tree Justice 317 for punitive
- Page 331 and 332: Pine Tree Justice 319 I do not prop
- Page 333 and 334: Pine Tree Justice 321 would thereby
- Page 335 and 336: Pine Tree Justice 323 problem. It e
Social Incrimination 275<br />
unconnected to the litigation. In Kinlock v Edmonds, 238 a female youth sued<br />
a police <strong>of</strong>ficer who tethered her while in police custody. The court denied<br />
attempts to admit photos <strong>of</strong> the plaintiff using drugs obtained from her<br />
Facebook page, recognizing the defendant’s strategy <strong>of</strong> trying to portray<br />
the plaintiff in an unflattering light. On the other hand, had the case been<br />
a child custody dispute, drug use by one <strong>of</strong> the parties might have been<br />
highly relevant to their parenting ability.<br />
Courts should be careful when dealing with printouts or testimony<br />
from a social network. Material posted by a litigant must be differentiated<br />
from material that may be posted by an acquaintance or automatically<br />
generated by the system. While a photograph posted by a friend featuring<br />
a plaintiff or a defendant may have relevancy, most social networking sites<br />
allow friends to comment or leave posts on an individual’s page without<br />
approval. For example, in an employment law case, an Alberta court<br />
overturned an employee’s dismissal for allegedly making harassing<br />
comments. The court concluded that another individual without approval<br />
likely made the comments, and the mere presence <strong>of</strong> statements on the<br />
employee’s Facebook wall had no relevance to the employee’s ability to<br />
perform their job. 239<br />
At least one recent decision appears to show a judge misinterpreting<br />
how social networks function. In a child custody dispute, an Ontario judge<br />
criticized a father for uploading a video <strong>of</strong> his daughter to YouTube and<br />
juxtaposing it next to an unsavory video. 240 While the father’s decision to<br />
upload a video may have been questionable and relevant, many social<br />
networks such as YouTube or Facebook dynamically generate<br />
advertisements or related content, <strong>of</strong>ten based on the computer settings or<br />
search terms <strong>of</strong> the person viewing the pages. Courts should ensure that<br />
only pictures, video or posts are admitted as evidence and not peripheral<br />
advertising or related links.<br />
I. Use <strong>of</strong> Social Networking Evidence<br />
Social networking evidence has uses in a variety <strong>of</strong> different suits.<br />
238<br />
Kinloch (Guardian ad litem <strong>of</strong>) v Edmonds, 2008 BCSC 1684 (available on WL Can).<br />
239<br />
Alberta Distillers Ltd v UFCW, Local 1118, 2010 AWLD 1108, 2009 CarswellAlta 1467<br />
(WL Can).<br />
240<br />
Bekeschus v Doherty, 2011 ONCJ 232 at para 23 (available on WL Can) [Bekeschus].
Change language