Wednesday, July 25, 2012

CyberSmokeBlog the elephant at the Douglas Inquiry?

Elephant in the courtroom: social media
By Donald Richards
Friday, July 27, 2012 Issue
When I was contacted in the fall of 2010 by the owner of an auto detailing shop about threatening and abusive posts being made by his employees on their Facebook walls, there were no precedents to follow. 

We could find no Facebook cases. Now, not two years later, there are many — ​and there will be more.

As Facebook, Twitter and other social networking websites become a part of our daily life, great quantities of information, both public and private, are being housed on these sites. Inevitably, this information has begun to show up in court.

Photographs of allegedly injured plaintiffs flying through the jungle at high speeds on zip lines are now being admitted into evidence. Lawyers are being ordered to have their clients preserve such evidence for trial. Indeed, some of the most damaging evidence against plaintiffs, grievors, and complainants will have been created and stored by them on social media websites.

And the presence of social media doesn’t end there: Jurors are polling their friends via Facebook from the deliberation room. Photos of witnesses are being taken in court and widely distributed. Is this freedom of information or an intimidation tactic? Lawyers are commenting on the judges presiding over their cases via Twitter. Members of the media are tweeting live from the courtroom.

These and other issues, ethical and professional, will be explored at the upcoming (August 12-14) Canadian Bar Association conference. “Snakes in the Grass: Ethical Issues in the Information Age” will explore the growing trend of social media use in the courtroom. How will the introduction of this new technology affect publication bans, court decorum, production of evidence and the administration of justice?

Chief Justice Beverley McLachlin, in a recent speech to students at Carleton University, addressed the explosion of social media, expressing concerns that fairness and accuracy might become “casualties of the social media era.”

“How can a medium such as Twitter,” she said, “inform the public accurately in 140 characters or less of the real gist of a complex constitutional decision?”

She also expressed concerns about improper influence of witnesses and juries: “If witness or juror contamination is a concern with television, is it not even more so with ubiquitous social media accessed or received via a hand-held device?”

There is no doubt that social media sites can serve a valuable purpose in wide-range, instantaneous sharing of information. But what happens when these new tools are taken to court? As with any new technology, the court must adapt and establish rules to balance freedom of expression and freedom of information against privacy rights and fair trial process.

Is it proper for a judge to “Google” an accused or party before her? Should a juror “Google” the accused? All of these issues raise practical, professional and ethical questions that must be guided by common sense. An accused’s right to a fair trial may be adversely affected by jurors viewing material on Google that would not otherwise be admitted into evidence. How does a juror maintain an impartial attitude after they have seen negative information and commentary about the accused online?

The role of social media in the context of criminal proceedings continues to evolve as law enforcement is increasingly relying on electronic evidence. It is now a common occurrence for criminal activity to be captured electronically; for example, through the use of cellphone cameras (and later posted on various social media sites). The RCMP recently charged two girls, aged 13 and 14, with an assault that was posted by a bystander on YouTube. In Britain, a young offender was recently handed a four-year jail sentence for setting up a Facebook event titled “Smashdown in Norwich Town” in what the court determined to be an attempt to incite rioting. As many of the participants in the Vancouver Stanley Cup riot of 2011 are finding out, it is unwise to wreak mayhem when just about everyone has a camera in their pocket. The use of social media-based video evidence will be prominent in such trials.

The Supreme Court of Canada in R. v. Nikolovski [1996] 3 S.C.R. 1197 considered the usefulness of videotape evidence and stated as follows: “Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.”

Social media is here to stay. The courts must establish common sense, balanced rules to deal with the challenges raised by this new technology.

Donald Richards is a partner at Farris LLP in Vancouver and was counsel on Canada’s first Facebook termination case.


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