Social media as evidence




Social Media as Evidence

by Dr Allison Stanfield (a College of Law webinar is available for this topic).

What is social media?

Social media is used by most of us everyday, and we all know it includes sites such as Facebook, Twitter, Instagram and LinkedIn. Beach J in Comité Interprofessionnel du Vin de Champagne v Powell[1]  described social media as:

“the contemporary phrase used to describe modern digital methods of communication having extensive reach and popularity; the forms of social media and the features thereof are continuously evolving”.

With social media, users can create their own webpages and communicate with others via online chat, instant messaging services, blogging, voice or video.  Essentially, social media sites allow us to interact with each other online, and they are Increasingly being used in business.

Facebook is arguably the most popular social media platform. Users can create either personal profiles or business pages in order to connect and communicate with other people.  Facebook had more than 1.86 billion monthly active users as of 31 December 2016.

Twitter is an online news and social networking service where users post and interact with messages, “tweets,” restricted to 140 characters.  Registered users can post tweets, but those who are unregistered can only read them.  As of 2016, Twitter had more than 319 million monthly active users.  On the day of the 2016 U.S. presidential election, Twitter proved to be the largest source of breaking news, with 40 million tweets sent that day.

YouTube is a website that allows visitors to upload, watch and share videos.  Generally videos are viewable by the public but privacy settings can be put in place by the content creator.  YouTube is now owned by Google.

LinkedIn predominantly used for business and employment.  Professional networking, employers posting jobs and job seekers posting their CVs.  As of September 2016, LinkedIn had more than 467 million accounts, out of which more than 106 million were active.  The “gated-access approach” (where contact with any professional requires either an existing relationship, or the intervention of a contact of theirs) is intended to build trust among the service’s users.  Photographs and videos can be uploaded to an account page using a range of filter effects and accompanied by captions, and shared by the creator via multiple other platforms including Twitter and Facebook.  Hashtags can be incorporated within a post in order to make that post easily searchable and visible on the Instagram page for that particular hashtag.  As of February 2016, LinkedIn had over 600 million users.

Blogging is becoming a form of publishing in its own right.  An author writes their own views on any particular subject, which is published by the author on the Internet.  Other users can then post comments on the site, giving feedback to the Blogger.

Wikis are websites that allow users to add, remove or edit content, such as Wikipedia.

Information posted on social media can remain indefinitely and be liable to misuse, such as identity theft or having that information used against the person involved in litigation or criminal matters.  There is also arguably a “big brother” aspect to social media where information can be used to “spy” on users.  Employers have been known to review a person’s social media account before considering them for employment.

Social media as evidence

Social media, combined with cloud computing and mobile devices, is changing the evidentiary landscape.

Content generated by users would be classed as documentary evidence.  Information such as the date and time of the posted would be real evidence (as long as it was generated by the social media servers).  Documentary evidence is generally considered hearsay and would need to be tendered through a witness, unless it fell within an exception to the rule against hearsay, such as the business records exception.

Data residing on social media platforms are subject to the same duty to preserve as other types of electronically stored information (ESI).  The duty to preserve is triggered when a party “anticipates litigation”[2] or it is reasonably likely that the evidence will be required in legal proceedings.[3]

Discovery of social media

Chief Justice Bathurst[4] has said that new court rules are “not necessary for the discovery of social media”.  His Honour is of the view that simply because a communication occurred over social media rather than traditional written form, “does not mean courts need to overcompensate”.  Rather, the existing rules of procedure and evidence can be applied and they are flexible enough to deal with this social media during discovery.

Almost all Australian jurisdictions have practice notes on the use of technology in civil litigation.[5]  The Federal Court of Australia’s GPN-TECH Technology and the Court Practice Note[6], the Supreme Court of Victoria’s Practice Note SC GEN 5 Guidelines for the Use of Technology and the Supreme Court of New South Wales’ Practice Note SC Gen 7[7] deal with electronic documents in their native format, whereas practice notes from other jurisdictions were put in place when e.discovery was more commonly conversion of hard copy to image format (which is a different process).

The Federal Court of Australia now discourages discovery and Federal Court of Australia Central Practice Note:  National Court Framework and Case Management (CPN-1) provides that ‘a discovery applicant should not make a [discovery] request unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible’.  CPN-1 also provides that ‘discovery can be extremely burdensome’.  If an order for discovery is obtained from the Federal Court, the Federal Court Rules rr 20.11 to 20.25 require that the party giving discovery must disclose any documents of which they are aware at the time of discovery, after a reasonable search.  A list of documents must be provided to the other party and any documents that are no longer in the party’s possession, custody or power must be listed separately, along with any privileged documents stating the ground upon which privilege is claimed.

In the Federal Court, Technology and the Court Practice Note (GPN-TECH) applies to electronic discovery.  Discoverable material is exchanged using metadata and images/files for each document.  Indeed, the court can make orders for the exchange of certain types of meta data, including the original document file path. The Federal Court now encourages the use of Technology Assisted Review.

In New South Wales, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), documents can be discovered in accordance with a notice to produce or an order of the court, if they are relevant to a fact in issue.  A list of documents must be provided to the other party and any privileged documents and the reason privilege is claimed, must be stated.  Supreme Court of New South Wales Practice Note SC Gen. 7 sets out the procedure for electronic discovery, and parties can agree to a Document Exchange Protocol or the parties can be ordered by the court to prepare the Protocol.  Discoverable material is exchanged using metadata and files for each document.  Like the Federal Court practice note, the Supreme Court of New South Wales’ practice note states that the ‘cost of unnecessary photocopying and assembly of documents is unacceptable’.  The Practice Note provides that ‘discovery of electronically stored documents and information is to be made electronically.  Discoverable documents and information that are not stored electronically should only be discovered electronically if it is more cost effective to do so’, and this was confirmed by Einstein J in Richard Crookes Constructions Pty Limited v F Hannan (Properties) Pty Limited

In Victoria, pursuant to Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 29, a party may serve on any other party a notice requiring discovery for any document in the other party’s possession.   ‘Possession’ is defined to include ‘possession, custody or power’.  An affidavit of documents listing each document to be discovered and must list any privileged documents, along with the reason for privilege.  Supreme Court of Victoria Practice Note SC Gen 5 Guidelines for the Use of Technology, which commenced on 30 January 2017, promotes ‘the effective use of technology in the conduct of civil litigation to reduce time and costs’, and also promotes the use of Technology Assisted Review.

In Queensland, pursuant to Uniform Civil Procedure Rules 1999 (Qld) rr 211-214, a party to a proceeding has a duty to disclose to each other party each document that is in the possession or under the control of the first party and is directly relevant to an allegation in the proceedings.  A list of documents must be provided.  The Supreme Court of Queensland Practice Direction 2011/10Use of technology for the efficient management of documents in litigation, outlines the use of information technology in proceedings and Form 19 List of documents provides a sample default protocol for the numbering and objective coding of documents.  The Supreme Court of Queensland practice direction encourages the adoption of document protocols from the institution of proceedings and the use of information technology to manage documents for disclosure and for interlocutory and directions hearings and at trial.

In South Australia, pursuant to Supreme Court Civil Supplementary Rules 2014 (SA) r 136 each party must disclose the documents that are, or have been, in the party’s possession and are directly relevant to an issue in the pleadings and pursuant to r 137 a list of documents is to be provided.  Pursuant to Chapter 7, Part 3, Division 2, there provisions for a basic form of electronic disclosure and an advanced form of electronic disclosure, and there are detailed guidelines for advanced electronic disclosure, including de-duplication, formatting, structure and quality of disclosed electronic documents.  The parties may apply to the Court for an order that the trial be conducted electronically.

In Western Australia, pursuant to Rules of the Supreme Court 1971 (WA) O 26, discovery can be given by notice or order.  A list of documents is to be produced, such list to enumerate the documents which are or have been in the ‘possession, custody or power’ of the party making the list (and separately list those that are no longer in party’s possession, custody or power).  The list must contain a description of each document and state any privileged documents and the grounds for privilege.  While there is no practice note setting out the way in which data is to be prepared for discovery, there are guidelines that can be used as a reference when preparing documents for discovery and if the matter is to be run as an electronic trial.

In Tasmania, the Supreme Court Rules 2000 (Tas) provide that the parties must make mutual discovery of documents that are or have been in their possession, custody or power relating to any matter in question in the action.  A list of documents is to be provided by one party to another in Form 26, each document must be enumerated in a convenient order, describe each document or bundle of documents, set out any privileged document and grounds for privilege and be accompanied by an affidavit verifying the list of documents.  The Supreme Court of Tasmania is yet to issue a practice note with respect to the use of information technology in civil litigation and electronic discovery.

In the Northern Territory, pursuant to Supreme Court Rules 2008 (NT) O 29 discovery is to take place of all documents that are in each party’s possession.  A list of documents is to be prepared identifying the documents, enumerating the documents in a convenient order and contain a description of each document or group of documents, identify those documents no longer in possession of the party and what is believed to have become of them.  The Supreme Court of the Northern Territory Practice Direction No.2 of 2002 – Guidelines for the Use of Information Technology in Any Civil Matter outlines the use of technology in court proceedings.

Legal requirements to retain evidence

The legal requirements that obligate organisations to retain evidence can be found in a number of places, for example in legislation, industry codes of conduct, in contracts, or there may be ethical requirements (such as the legal professional regulations which prohibit destruction of documents).  Further, there may criminal liabilities for the wilful destruction of documents or common law sanctions.

Following on from the decision in British American Tobacco Australia Services Limited v Cowell,[8], which requires documents to be retained if there is “anticipated litigation”, the Victorian parliament introduced the Crimes (Document Destruction) Act 2006 (Vic) which imposes penalties for the destruction of documents that are “reasonably likely” to be used in litigation. Other jurisdictions have legislation imposing penalties for the destruction of evidence which is to be used in judicial proceedings. At common law, there is a duty to retain documents when potential litigation is ‘reasonably anticipated’, and this applies to all relevant documents, even those which may be damaging to a respondent’s case (subject to privilege).

Possession, Power or Custody

It is clear that individuals have “an actual and immediate ability to examine the information contained on their own social media pages and have the power to obtain information stored on their own social media accounts, even if they do not have ownership of this information,” per Bathurst CJ.[9]

Facebook has its own policy regarding discovery & subpoenas, which it calls Information for Law Enforcement Authorities. Facebook also allows users the ability to download your info, where a zip file can be downloaded that contains timeline information, posts, messages, and photos.

Twitter offers a similar, although somewhat limited, option users can download all Tweets posted to an account by requesting a copy of the user’s Twitter “archive”.  Assistance of a third-party vendor may be required to ensure complete preservation.  There are also commercially available tools that are specifically designed for archiving and collecting social media.

Bathurst CJ has said that “pictures and comments are put online and deleted frequently, often without any effort or thought and courts must strike a balance between the significant interest in preserving evidence that may be relevant to litigation and reducing the burdens associated with preserving electronic evidence of this nature.  Sanctions should only be considered where conduct amounts to an attempt to pervert the course of justice”.[10]

For the purposes of discovery, “custody” means the mere actual physical or corporeal holding of a document, regardless of who has legal possession.[11]

“Power” means an enforceable right to inspect or obtain possession or control of a document from the person with custody over it.[12]

“Possession” can include the act or fact of possessing, ownership, legal holding or occupancy, either with or without rights of ownership or a thing possessed.  The case law looks at “control”.  The term “control” was considered by the Supreme Court of Queensland in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd[13] where Helman J held that control is not necessarily exclusive control, and that the rule will require disclosure of documents even if it is not in the sole possession or control of a party, that is, it is in the party’s possession or control jointly with some other person who is not before the court.  When offsite records are involved, data may be in a third party’s possession and control, such as an Internet Service Provider and such records may need to be subpoenaed.  Such subpoena would be directed to the Internet Service Provider.

Interestingly, the question of control over a database came before the English Court of Appeal in Your Response Limited v Datateam Business Media Limited[14] (“Your Response“).  In that case, the question before the court was whether the respondent, Your Response, could have a lien over a database for unpaid fees.  Your Response posed a number of arguments that it indeed could exercise a lien over the database because:

  1. it can be considered to be a physical object since it exists in a physical form on servers;
  2. the essence of possession is physical control, coupled with an intention to exclude others and that a person can properly be said to possess something if he or she is able to exercise complete control over access to it;
  3. a database can be regarded as a document; and
  4. there is a distinction to be drawn between choses in action and other kinds of intangible property, such as an electronic database.

While the court accepted that physical changes are brought about on the storage medium upon which information is stored, the court did not consider that this rendered the information itself a physical object capable of possession independently of the medium in which it is held, and said that the ‘distinction is of some importance because of the ease of making and transmitting intangible copies’.  Further, the court noted that there is a distinction between a disk or other medium on which data is held (the disk being a tangible object) and the data itself (which is not).  However, with the greatest of respect to the court in that matter, the question is whether, like paper, one can exist without the other?  That is, can the data exist without the disk, in the same way that ink on paper cannot exist without its medium?

With respect to the issue of control, the court said that while possession is concerned with the physical control of tangible objects, practical control is a broader concept, capable of extending to intangible assets, which the law would not regard as property at all.  While the respondent was entitled to exercise practical control over the information constituting the database, it could not exercise physical control over that information, which was intangible in nature.  As to whether a database is a ‘document’, the court discounted this argument, as the basis on which the argument applied, concerned discovery, which was not in issue in this matter.  Finally, regarding the issue of whether a database is a form of intangible property different from a chose in action, the court did not accept that argument.  Rather, the court held that the database is intangible property and therefore not subject to a chose in action.  In coming to its conclusion, the court analysed the decision in In OBG Ltd v Alan[15] where the question was whether intangibles could be the subject of conversion.  The majority of the court in that case suggested that the essence of conversion is a wrongful interference with the possession of tangible property, while the minority were of the opinion that intangibles should no longer fall outside the ambit of the law.  Ultimately, the court in Your Response, concluded that it is a job for Parliament to make such changes to the law in order to legally recognise data as a classification of intangible property.

The courts do tend to distinguish between information on electronic media and the files themselves.  Indeed, a digital video recording has been held to be incapable of being ‘property’.  In Dixon v R,[16] the Supreme Court of New Zealand had to determine whether a digital video recording was ‘property’ within Crimes Act 1961 (NZ) s 2.  That section defines property as including ‘real and personal property, and any estate or interest in any real or personal property, money, electricity and any debt, and anything in action, and any other right or interest’.

At first instance, District Court Judge Phillips found that Dixon did obtain property as a result of accessing the computer.  However, on appeal, the New Zealand Court of Appeal found, ‘after careful consideration’,[17] that ‘electronic footage stored on a computer is indistinguishable in principle from pure information’ and allowed the appeal.  The Court of Appeal, said that it is problematic to treat computer data as being analogous to information recorded in physical form.  The Court of Appeal found that a computer file is essentially just a stored sequence of bytes that is available to a computer program or operating system, which cannot meaningfully be distinguished from pure information.  Ultimately, the Court of Appeal held that the definition of “property” in the Crimes Act 1961 (NZ) was not amended to include computer-stored data and therefore, held that the digital video did not fall within that definition; rather the court left it to the Parliament to make such further amendment.

However, the Supreme Court of New Zealand in Dixon v R[18] overturned the Court of Appeal decision with respect to whether the digital files were ‘property’.  The Supreme Court found that ‘the digital files at issue are property and not simply information’ and considered that ‘the digital files can be identified, have a value and are capable of being transferred to others. They also have a physical presence, albeit one that cannot be detected by means of the unaided senses. Whether they are classified as tangible or intangible, the digital files are nevertheless property’ for the purposes of the Crimes Act 1961 (NZ).

The Supreme Court referred to the definition of ‘computer system’ in the Crimes Act 1961 (NZ), which the court considered to be a wide definition and includes items such as software and stored data.  The Supreme Court concluded that ‘there is no doubt that Parliament had stored data in mind when these provisions were drafted. Equally, there is no doubt that Parliament had in mind situations where stored data was copied. “Access” is defined to include receiving data from a computer:  data is received from a computer even though it is copied rather than permanently removed from the computer’. The Supreme Court ultimately found that the fundamental characteristic of ‘property’ is that it is something capable of being owned and transferred.

In Davies (Daniel) v Police[19] the New Zealand District Court established that it was not necessary for it to determine whether internet usage was property capable of being stolen because all that was necessary was to establish that internet usage was property for purposes of Crimes Act 1961 (NZ) s 2 and that elements of offence in s 219 were made out. If internet usage can be considered property, it is indisputable that using the internet is an extension of multiple data files. Furthermore, the Australian case Australian Property Custodian Holding v Capital Finance[20] held that a charge can secure an asset that comes into existence after the date of the charge, regardless whether it is tangible or intangible property. Thus, if intangible property such as shares in another company can be the subject of a fixed legal or equitable charge it is possible that data could too be recognised as the subject of a fixed legal or equitable charge.

Whether or not a database can be “controlled” is an interesting question and in Your Response the court concluded that it could not be controlled because it was intangible property, as distinct from tangible property.  This position can be juxtaposed with that in intellectual property law, where intangible items are capable of being intellectual property, and are subject to ownership principles such as acquisition, transfer and sale.  Copyright Act 1968 (Cth) s 30 grants the owner exclusive rights and the Patents Act 1990 (Cth) s 13 grants exclusive rights to the patentee.  Both IP and Copyright property can be transferred by the will of the owner, much like selling title to land, or assigned or licensed, much like leasing real property.  In Australia, the Supreme Court of New South Wales has ordered that the domain name and associated data be returned to a party in order to prevent further loss or damage; [21] this indicates that data has value in itself in a commercial setting.

In Dixon v R, outlined above, the Supreme Court of New Zealand does distinguish Your Response.  There the Supreme Court found that a digital file can constitute property.  This is consistent with the early 20th Century decision in R v Daye[22] where the court determined that documents can cover any record of evidence or information and are not limited to tangible documents, illustrating that data, such as a stored system of bytes, is what constructs an electronic document. This is further supported by the Canadian case of Innovative Health Group Inc. v Calgary Health Region,[23] which recognises the unique features of electronic documents, highlighting the proposition that data is property that can be read and understood on computers.  In today’s world, it is necessary to appreciate that data is vital and necessary for modern day business operations. In Your Response, the court posits that if a database of a business is not maintained and improved it will result in being obsolete and useless to the business. Moreover, in the United States of America, damage to a database has been held to be direct physical loss of or damage to property.[24]

In summary, the cases above highlight the inconsistencies in dealing with electronic evidence.  The New Zealand cases state a digital file can be ‘property’, but the English authorities say that a database is an intangible thing and therefore cannot be owned, or possessed.  The Canadian authorities recognise that electronic documents have unique features.  Under the definition in the Uniform Evidence Acts, a database can be included in the definition of a document.  However, if the courts are saying that a database is intangible and therefore not considered property, which is inconsistent with the laws of intellectual property and copyright, how does one reconcile ownership or ‘possession’ of such ‘documents’ when looking at whether documents ought to be discovered or not and ultimately tendered as evidence?   Further, if certain electronic evidence cannot be ‘owned’, then arguably it cannot be within a person’s possession, custody or control and is therefore not discoverable.  In terms of admissibility, the electronic ‘document’ may be admissible, but in order to obtain a copy to admit as evidence, the litigant would need to issue a subpoena to the ‘owner’ of the document before it can be obtained and tendered in court.  This really means that there has to be separate rules about the ‘possession’ of data that is, who is deemed to be the possessor and what are the attribute of possession.  Who would, therefore, be responsible for presenting it to a court upon subpoena?

Meta data

If electronic information has been held to be incapable of being property, then what of metadata?   The law in this area remains in a state of flux.  Ben Grubb, a reporter for the Sydney Morning Herald, won the right to have Telstra hand over his metadata relating to his mobile phone, based on such metadata being personal information,[25] however, this decision was overturned by the Administrative Appeals Tribunal on appeal.[26]  Leaving aside the questions of privacy, the metadata itself may be discoverable, and the metadata that is currently collected by the government pursuant to the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) may be capable of being used in civil proceedings in the future.

Subpoenas

If a subpoena is issued to Facebook, then it needs to be appropriately worded, that is, to ask for what is relevant.  Facebook on its website, says it will provide its data in response to a valid subpoena, court order or search warrant.  Pursuant to the Stored Communications Act (USA), a valid subpoena issued in relation to a criminal investigation can compel disclosure of basic subscriber records.  A search warrant showing probable cause can compel disclosure of stored contents of any account including messages, photos, videos etc.

Further, the subpoena may need to be issued in another jurisdiction; this was highlighted in Mohareb v Palmer [2015] NSWDC 411.  In that case an unrepresented litigant issued a subpoena to Facebook Australia.  Facebook responded, clearly stating where its information is kept.  The response of Facebook Australia included the following passage in its letter:

“Facebook Australia does not have any documents or things to produce in response to the  subpoena.  The  subpoena  requests records and content of users of the Facebook  website. As explained in its terms of use, the Facebook service, including the website www.facebook.com, is operated by Facebook  inc, a corporation organised and existing under the laws of the United States, and Facebook Ireland Limited, a company organised and existing under the laws of the Republic of Ireland. However, Facebook  Australia does not operate, control, or host content available at facebook.com or facebook.com.au. It has no access to Facebook user content and is not in possession of any material sought under the subpoena. Facebook Australia therefore cannot take any action on this request. For that reason, please consider this letter as Facebook Australia’s formal objection to the subpoena.  Any further inquiries should be directed to the proper entity.  In the circumstances, we assume it is not necessary for  Facebook  Australia to take any further action in response to this subpoena.  Please note that we are not instructed to accept service on behalf of our client.  Facebook Australia reserves all of its rights.”

Jurisdictional issues are also highlighted by the recent “Microsoft Ireland” case, where Microsoft was ordered by a court in the United States of America to make available documents stored on servers in Ireland.  At first instance, a US District Court Judge ruled that Microsoft must turn over a customer’s emails which are stored in a data centre in Ireland to the US Government, however, this was overturned on appeal, with the Court of Appeal stating that the Congress did not intend for the provisions of the Stored Communications Act (USA) to apply extraterritorially[27].

Privacy

In Australia, there has been much public discussion over the government’s right to access metadata collected and stored by telecommunications carriers.  The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) imposes data retention obligations on telecommunications carriers, carriage service providers and internet service providers.  The Telecommunications (Interception and Access) Act 1979 (Cth) already allows certain government bodies and agencies to gain access to telecommunications data (but not the content of the communications),[28] however, there was no obligation on carriers and carriage services providers to collect and store that data.  The 2015 amendments provide for certain data to be retained for two years.[29]  The data set has been specified in the Act and includes:

  • Date and time of a communication (for example, the start/end time of a phone call, time an email or message is sent, or when a chat began);
  • Type of communication (for example, SMS, phone call, email, video chat, social media platform) and
  • Type of service used (for example, ADSL, cable, GPRS, Wi-Fi);
  • Features of the service (for example, data volume usage, call forwarding, call waiting);
  • Duration of a communication;
  • Identifiers of the account (email addresses, phone numbers of incoming/outgoing caller, identification number of a mobile device used);
  • Data on the status of the service and any related account or device; and
  • Location of the equipment (phone, wifi hotspot, cell tower) at the beginning and end of the communication.[30]

However, the data set does not include the content of emails or calls and does not include a user’s web browsing history, log-in information or password.  The data will be ‘personal information’ under the Privacy Act 1988 (Cth) and must be encrypted[31] (the type of encryption is not prescribed).  PricewaterhouseCoopers has estimated the cost to these services providers to retain this information to be between $188.1 million and $319.1 million,[32] although a service provider can apply for an exemption to encrypt data by offering ‘alternative data retention or information security arrangements’.[33]  At the time of writing, the Attorney-General’s Department has a launched a review of the data retention legislation as to whether to allow the information collected to be used in civil cases, not just terrorism-related investigations.[34]  If the outcome of the review is such that the information collected can be used in civil cases, this would mean such information becomes discoverable; web browsing history, which at the moment would need to be gleaned from the computer upon which such web pages are downloaded (if they are still available), would now be obtainable.[35]

In Europe, the European Union Data Protection Directive[36] (Directive 95/46/EC), sets up a regulatory framework which seeks to strike a balance between a high level of protection for the privacy of individuals and the free movement of personal data within the European Union (EU).  To do so, the Directive sets strict limits on the collection and use of personal data and demands that each Member State set up an independent national body responsible for the protection of these data.  Thus, a company may be violating this EU directive if the data goes to services in prohibited countries but in many cases, the vendor cannot make contractual promises regarding the location of the data as they do not know where the data will be going.  On 21 December 2016, the Court of Justice of the European Union ruled that the mass retention of data is illegal.[37]

Criminal matters

In criminal matters, the courts have warned against Facebook identifications.  In Strauss v The Police [38], a witness identified the accused via a photograph. Peek J stated that so called “Facebook identifications” have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police.  His Honour stated that purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely involve a group of people each having similar features to the accused; they suffer from “foil bias”.  Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed “Facebook chat” and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified.

In R v Crawford[39] , the appellant sought to exclude the Facebook and photographic identifications on the basis that they were more prejudicial than probative and would cause unfairness to the appellant.  Strauss v The Police was cited by the court, as was O’Floinn and Ormerod[40] cited, which said that:

“witnesses researching social  networking site (SNS) photos of those suspected of offences is becoming commonplace.  An emerging challenge when such evidence is revealed is that the witness’s initial SNS identification contaminated subsequent formal identifications”.

McCullough [41] demonstrates the emerging problems.  In that case, M was charged with robbery and evidence included M’s presence in the vicinity. However, proof of M’s involvement depended entirely on the identification by W. W had searched M’s Facebook account after a friend told him it “sounded like something like … [M] would do.”  W identified M from the profile as the robber. W subsequently identified M in a video identification procedure.  It was argued that the Facebook identification was “unsatisfactory and unreliable” and contaminated the subsequent procedure. In response, it was argued that the Facebook identification was no different to a street identification. However, there are considerable differences.  With many SNS identifications a witness will be directed to search for a particular individual. Although it was claimed W “looked at a photograph of the appellant and also photographs of other individuals and groups of people”, there is clearly a danger of predetermination with SNS identifications.

In Bayley v The Queen[42] , which was the case involved Adrian Bayley who murdered Jillian Meagher when she was walking home from a hotel in Brunswick, Melbourne.  In that case, the reliability of CB’s identification from the Facebook page is pre-eminently a jury question. Properly instructed, we have no doubt that the jury will be capable of making an assessment of the credibility and reliability of the victim’s identification, after adequately scrutinising the suggested shortcomings in the evidence (including the suggested lack of safeguards identified in Strauss). With the benefit of appropriate judicial direction, it is unlikely that the jury will give the evidence undue weight.

In the New South Wales; Court of Appeal, Beazley P, Schmidt J and Button J said in Hughes v R [43]:

All of us, accused, victims, judges, jurors and other members of our community now live in a world of instant, largely unregulated communication of opinions disseminated by publication on  social media , where they can endlessly be accessed and responded to by others.[44]  Such opinions range from the mildest of those depicted on the material in evidence (to the effect that if convicted the applicant should be appropriately sentenced), to the most extreme. In this case, that included satirical videos in the poorest of taste accessible on YouTube and even worse.[45] The reality remains, however, that our civil society and the justice system which it has devised, is the means by which we help ensure that such views remain confined to  social media, where those who hold such views are free to express them, rather than being acted on.[46]

The use of social media as evidence

There are now several cases which have considered social media as evidence before the courts.  In the Federal Court of Australia in Bauer Consumer  Media  Ltd v Mamamia.com.au Pty Ltd[47], Bauer sought an interlocutory injunction restraining Mamamia from launching under the name “Debrief Daily”.  Evidence from the following web-based entities was tendered and considered by the court:

  • Google Analytics to show how many visitor sessions had been made to a website and how many unique visitors
  • How many Twitter follows, Instagram followers and Pinterest followings
  • The number of YouTube views and Google+ views
  • Results of Google searches

In the Federal Circuit Court in Dautry & Wemple [48], Neville J said that:

“the Court regularly warns litigants about the use of  social media  and the ready access by others to it … making information available through  social media  necessarily involves, if not invites, others having access to it.” [49]

Further, in Lawrence & McCormick[50] the Federal Circuit Court accept evidence that “there are prospective benefits to the children in having their photographs posted on their  social media  sites by reason of increased and meaningful contact with members of their extended family and also their friends.”[51]

There have also been a number of Fair Work Commission cases that have considered posts on social media.[52]  A number of Refugee Tribunal cases has also considered evidence on social media.[53]

In the United States, judges have privately reviewed the information in advance to determine if it should be disclosed; [54], courts have conducted in camera reviews[55] and judges have become ‘friends’ with a party to determine if private Facebook posts were relevant[56]. Judges have also required parties to turn over physical access, that is, usernames and passwords, for social media accounts to the other party.[57]

Conclusion

Social media is here to stay and the courts have now had some opportunity to consider social media as evidence.  It is certain that the law will continue to evolve as courts consider more matters.  Social media is now standard not only in our personal life, but also in business.  The case of Bauer Consumer Media Ltd v Mamamia.com.au Pty Ltd[58] involved business that interact with customers completely online, and in considering evidence about the parties’ respective businesses, looked at social media and website evidence solely.

 

[1] [2015] FCA 1110 at [131].

[2] British American Tobacco Australia Services Limited v Cowell (2002) 7 VR 524; [2002] VSCA 197

[3] Crimes (Document Destruction) Act 2006 (Vic)

[4] The Hon. T. F. Bathurst, Chief Justice of New South Wales, Tweeters, Posters and Grammers beware:  Discovery and social media, 10th Information Governance & e.discovery Summit, 21 June 2016

[5] Federal Court of Australia, GPN-TECH Technology and the Court Practice Note, issued 25 October 2016, Supreme Court of Queensland, Practice Direction 2011/10 – Use of Technology for the Efficient Management of Documents in Litigation, Supreme Court of New South Wales, SC Gen 7 Supreme Court – Use of Technology, 9 July 2008, commenced 1 August 2008, Supreme Court of Victoria, Practice Note SC GEN 5 Guidelines for the Use of Technology, commenced 30 January 2017, Supreme Court of South Australia, Supreme Court Civil Supplementary Rules 2014 (SA), Chapter 7 Part 3, Division 2 deals with electronic disclosure in basic form and Chapter 7 Part 3 division 3 deals with electronic disclosure in advanced form, Supreme Court of the Northern Territory, Practice Direction No 2 of 2002, Guidelines for the Use of Information Technology in any Civil Matter, 13 February 2002, Supreme Courts and District Courts of Western Australia Technical Guide for Preparing and Submitting Documents for E-trials, 24 September 2008.  Other jurisdictions such as England & Wales and Canada (see the National Model Practice Direction for the Use of Technology in Civil Litigation) have implemented similar practice directions.  In the United States of America, the Federal Rules of Civil Procedure (USA)  have been amended to incorporate guidelines developed out of the Sedona Conference.

[6] Federal Court of Australia, GPN-TECH Technology and the Court Practice Note, issued 25 October 2016.

[7] Supreme Court of New South Wales, Practice Note SC Gen. 7, 9 July 2008.

[8] British American Tobacco Australia Services Limited v Cowell (2002) 7 VR 524; [2002] VSCA 197;  BC200207341.

[9] The Hon. T. F. Bathurst, Chief Justice of New South Wales, Tweeters, Posters and Grammers beware:  Discovery and social media, 10th Information Governance & e.discovery Summit, 21 June 2016

[10] Ibid.

[11] Roux v Australian Broadcasting Commission [1992] 2 VR 577; Commissioner of Taxation (Cth) v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; Reid v Langlois (1849) 1 Mac & G 627; 41 ER 140.

[12] B v B [1978] Fam 181; [1979] 1 All ER 801; Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123

[13] [2001] QSC 259 (18 July 2001); note this matter was appealed to the High Court on another point.

[14] [2014] EWCA Civ 281.

[15] [2007] UKHL 21.

[16] [2015] NZSC 147

[17] [2014] NZCA 329 (7 July 2014)

[18] [2015] NZSC 147,

[19] [2008] 1 NZLR 638.

[20] [2012] VSC 124 (4 April 2012).

[21] Hoath v Connect Internet Services (2006) 229 ALR 566.

[22] [1908] 2 KB 333.

[23] 2008 ABCA 219 (CanLII).

[24] NMS Services Inc. v The Hartford, 62 Fed. Appx. 511, 2003 U.S. App. LEXIS 7442 (4th Cir. Apr. 21, 2003).

[25] Ben Grubb and Telstra Corporation Limited [2015] AICmr [35] (1 May 2015) at [171].

[26] Telstra Corporation Limited v Privacy Commissioner [2015] AATA 991.

[27] Microsoft Corporation v United States of America Case 14-2985, Document 286-1, 07/14/2016, 1815361.

[28] Telecommunications (Interception and Access) Act 1979 (Cth), Chapter 4.

[29] Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), s 187C.

[30] Ibid, s 187AA.

[31] Ibid, s 187BA.

[32] Commonwealth Attorney-General’s Department’s website.

[33] Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth), s 187K.

[34] Refer Commonwealth Attorney-General’s Department website.

[35] This review has been subject to criticism:  Hayden Cooper, Data retention laws: Experts warn against opening up metadata to civil cases as telcos renew bid to change laws, ABC News.

[36] European Union, Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 24 October 1995.

[37] Tele2 Sverige AB and Secretary of State for the Home Department v Post ECLI:EU:C:2016:970.

[38] [2013] SASC 3.

[39] [2015] SASCFC 112.

[40] O’Floinn and Ormerod, “Social  networking material as criminal evidence” [2012] Criminal Law Review 486, 500.

[41] [2011] EWCA Crim 1413.

[42] [2016] VSCA 160.

[43] [2015] NSWCCA 330.

[44] Ibid at [68].

[45] Ibid.

[46] Ibid at [69].

[47] [2014] FCA 1400.

[48] [2015] FCCA 943.

[49] Ibid at [28].

[50] [2017] FCCA 128.

[51] at [39].

[52] Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186; Migliore Pty Ltd v Kelly McDonald (2013) 236 IR 160; Winship v Corporation of the Town of Walkerville [2015] SAIRComm 9; Starr v Department of Human Services [2016] FWC 1460); Remmert v Broken Hill Operations Pty Ltd [2016] FWC 6036; Little v Credit Corp Group Limited [2013] FWC 9642; and Banerji v Bowles [2013] FCCA 1052.

[53] 1412207 (Refugee) [2016] AATA 3813 (27 April 2016); 1420239 (Refugee) [2016] AATA 4018; AHL15 & Anor v Minister for Immigration & Anor [2017] FCCA 232; SZUMY v Minister for Immigration & Anor [2015] FCCA 1482.

[54] Offenback v. Bowman, a No. 1:10-cv-1789, 2011 U.S. Dist. LEXIS 66432 (M.D. Pa. June 22, 2011).

[55] Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012.

[56] Barnes v CUS Nashville, LLC 2010 WL 2265668 (M.D. Tenn. June 3, 2010).

[57] Largent v Reed Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011).

[58] [2014] FCA 1400.

© 2017 Allison Stanfield