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

284 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
suspensions have been upheld where threatening social networking videos
have been produced in jest if they “materially and substantially disrupt the
work and discipline of the school.” 282
VI. CONCLUSION
This paper examined the legal issues related to discovering and
utilizing evidence from social networks and looked at the ways courts have
dealt with it in terms of both criminal and civil law. In criminal
proceedings, investigators have tools to obtain evidence directly from the
social networks when reasonable grounds exist. They must then proceed to
prove the authenticity of the material as well as ensure that the probative
value outweighs potential prejudice. In Canada, local investigations can be
assisted by the Department of Justice to obtain the necessary court orders
in the US. Defence lawyers faced with social networking evidence should
be aware of issues regarding authentication, context and potential
prejudice.
In civil proceedings, parties are obligated to produce any evidence that
is relevant to an issue which depends on the nature of the claim or the
dispute. In litigation particularly, it is incumbent on counsel to advise
their clients on the risks of using social networks, as well as their
obligation to preserve relevant material even if it is adverse to their case.
Anyone involved in a dispute should be aware that procedural fairness and
the truth seeking process will generally outweigh personal privacy
concerns, and courts have the power to compel individuals to uncover
their digital lives to assist in dispute resolutions.
Social networks have only been around a few years and the law in
these areas will continue to grow. Some of the cases covered spring from
misunderstandings of the private nature of a social network. Others are
the result of a compulsion to seek attention despite the consequences.
In large part, the use of social networking has resulted in traditional
means of communicating inner secrets and private thoughts being
displaced with keyboard strokes and chat transcripts. This paper is not
intended to dissuade individuals from using social networks. From
connecting long lost friends to helping overthrow dictators, the benefits of
282
OZ v Board of Trustees of Long Beach Unified School Dist, 2008 WL 4396895 (CD Cal).