Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Intellectual Property – Social Media Series, July 2011
Whether one "tweets," "friends" or otherwise communicates on any of the many social networking websites available for personal or business communications, you should realize that what is said, posted or received may be used in the course of court or arbitral proceedings.
Social networking is now an integral part of our communication tool box and has greatly facilitated the exchange of information. However, it has also expanded the scope of accountability in a way that paper trails seldom do. Depending upon the importance of the issues or money at stake, these are trails that litigation will inevitably explore and expose.
This article briefly considers the way in which core aspects of dispute resolution have been affected by social media, namely notice; preservation, production and discovery of documents; and the use of documents in a court or arbitral proceeding.
Notice of Legal Proceedings
Historically, notice of an originating legal proceeding had to be served personally or by a limited number of alternatives to personal service. Depending upon the facts and the need for immediate court response, any method of bringing the proceeding to the recipient's attention is acceptable if it can be demonstrated that there is a high probability of the notice being received. The reason for these procedural safeguards is to ensure fairness and provide the recipient with an opportunity to be heard.
In the event that the proceeding goes forward in the absence of the recipient, the result can be set aside if it can be demonstrated that the notice had not come to the recipient's attention through no fault of the recipient.
Canadian courts have always had jurisdiction to order service by a non-routine method, called substituted service, where it was impractical to effect prompt personal service or where it was necessary in the interests of justice to do so.
Even if an order for substituted service is not obtained in advance, courts can always validate service, provided that it can be established that the recipient received such notice and was attempting to evade service. However, even where evasion has not been an issue, courts have validated service where it can be demonstrated that notice came to the attention of the recipient.
As technology evolved, alternatives to personal service began to include the postal system, facsimiles and couriers. Recent case law in Canada, the United States, the United Kingdom, Australia, New Zealand and other countries demonstrate how quickly the courts have moved from the traditional methods of notice to the point where social networking sites are now seen as a reasonable alternative to providing notice in legal proceedings.
Given the manner in which social media sites are rapidly becoming the modern version of the town square or village meeting place, it is not surprising that the courts have recognized service via such sites in appropriate cases. For example, one U.K. court recently allowed a plaintiff to serve a summons on a debtor through substituted service via FACEBOOK.
Preservation of Documents and E-Discovery
The failure to maintain documentary evidence that could have a bearing on a dispute has attracted much attention in the age of electronic evidence. The consequences of being found to have not protected relevant documents can be disastrous and, in some cases, may result in a court taking an adverse inference towards the party at fault.
When the only records were "hard copies", it was relatively easy to identify, segregate and preserve documents for the purposes of litigation. The volume, speed and variety of ways of transmission of electronic messages make it a daunting task for litigants when it comes time to identifying, preserving and producing such information.
The rules of civil procedure of Canadian courts recognize wide definitions of "documents" for the purposes of disclosure and production to the other side. For example, the Ontario Rules of Civil Procedure provide that a "document" includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form.
The Ontario Rules also provide that a document shall be deemed to be in a party's power if that party is entitled to obtain the original document or a copy and the party seeking it is not so entitled. This has wide-ranging consequences for users of social media where the content is relevant to a legal proceeding. For example, a document posted by a third party on one's FACEBOOK page may have to be produced.
E-discovery has spawned an entire industry of service providers and software products to deal with the identification, production and examination of relevant electronic documents. In many cases, the indiscriminate and wide use of emails and messaging systems has made it next to impossible for a litigant (let alone their lawyers) to "sift the wheat from the chaff."
Several Canadian decisions have ordered the disclosure and preservation of information from social networking sites. Such disclosure is dependent upon the probative value of the information being requested, provided that disclosure does not infringe reasonable expectations of privacy. For example, a plaintiff claiming to be suffering from chronic pain may be faced with contradictory FACEBOOK pictures.
A person who posts something on an unrestricted social networking page has no reasonable expectation of privacy. There have already been several Canadian decisions in which courts have ordered the disclosure and preservation of information from social networking sites, such as FACEBOOK pages.
Disclosure has been ordered where the probative value of the requested information would not violate a reasonable expectation of privacy. However, this requires an examination of the reasonable limits of each request. Even where the information is contained in the "private" portion of a profile, numerous friends may have access to see and further disseminate the information so that such private portions may be subject to discovery.
There is a movement in Canadian dispute proceedings to limit the scope of discovery by imposing notions of proportionality. In other words, there are reasonable limits that will be imposed on requests for information of any type, including pictures, records, messages that might be found on social networking sites.
Even though proportionality values may ultimately rule out the use of many electronic documents, a litigant is still responsible for determining the existence of relevant documents and ensuring that such documents are not destroyed pending such a determination.
Most websites are dynamic, both in content and operation. In some cases, reference to a live website is better evidence than a print copy. A court can see the contents, including documents as they exist, or may have existed, on the Internet and can see features such as hyperlinking, metatagging, and interactive streaming that cannot be realistically reproduced on paper.
There is no particular magic in information obtained on the Internet. If the information would be admissible on a rule of evidence, the fact that it is obtained on the Internet is not determinative. Online articles, websites and definitions are admissible as evidence of information which is available to the general public. Information on foreign websites that are accessible domestically may also be admissible.
On the other hand, the mere fact that the information is publicly available on the Internet and readily producible does not make it reliable. Such information must still satisfy the normal tests for admissible evidence. The weight given to such evidence must be carefully evaluated because the source is often unknown or the credibility untested. Courts must view evidence located on the Internet warily, and the record of such evidence must be sufficiently developed to provide an adequate factual underpinning.
In litigation relating to Internet activities, it is often necessary to provide evidence as to the content of a website at a particular point in time. The caching and archiving of websites result in evidence being recorded and available long after content is deleted from a live website.
A commonly used source for historical views of websites is the WAY BACK MACHINE, located at «www.archive.org», which contains a library of archives of Internet websites. Canadian decisions have not been uniform on the admissibility or reliability of evidence from the WAY BACK MACHINE, although some cases have accepted such evidence without comment.
The issue of whether counsel can access content on social networking websites in the context of a dispute has been considered by various bar committees in the United States. A lawyer may not be permitted to cause a third party to access the social networking website pages of an individual to obtain information that might be useful for impeaching that individual's testimony at a trial where those pages are generally accessible only with the permission of the individual through a "friend". This would constitute of a false statement to a third party for which the lawyer would be responsible.
However, a lawyer representing a client in pending litigation may access the public pages of another party's social networking website for the purpose of obtaining possible impeachment material for use in the litigation, provided that the lawyer does not employ deception in any way, such as by becoming a member of the target's network or in "friending" the person.
In the same manner that emails may become relevant as documents and must be preserved in litigation, one must expect that information posted on social networking sites is potentially just as relevant. The lines between "public" and "private" information can be erased if relevance can be shown or inferred by the court or arbitrator.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.