The use of Facebook is widespread and courts often struggle with evidence from Facebook user accounts. Two recent decisions, Rhone v. Schneider National Carriers Inc. from the U.S. and R. v. K.M. from Canada highlight this problem.
In Rhone v. Schneider National Carriers Inc. the plaintiff had denied the existence of relevant Facebook data, and once relevant data was uncovered, resisted production requests. The court ordered the plaintiff to produce Facebook information using the "Download your Info" feature. “Download your Info” creates a report containing all the Facebook usage information for that account. The court noted that such a broad production, while not always appropriate was warranted at this time.
In R. v. K.M. the court addressed the authentication of a Facebook chat. The court determined that a printout of a chat was electronic evidence. The defendant challenged the authenticity of the printout noting anomalies in dates in the document and the fact that the witness drew a line on the printout to indicate where the conversation ended. The court addressed these concerns and determined the printout was admissible. The court also noted that authentication of an electronic records system is expensive and time consuming. To overcome this, it accepted testimony that the computer which printed the chat was working, as proof the electronic system was operating properly.
These two decisions are part of a growing trend that shows courts understand the importance of social media as a source of relevant evidence. In both decisions, the courts seemed to have taken an “ends justify the means” approach. Social media is how people share information about themselves and communicate with each other. Courts will be creative in finding ways to have this content admitted and given weight.