In litigation, messages from social media may contain information that is relevant or key to the case. However, as with all other evidence, social media evidence must be preserved and collected from the social media application in a defensible manner so that it can be properly authenticated when called upon to do so.
A recent Court of Appeal decision, R. v. Aslami 2021 ONCA 249, addressed the reliability of SMS and social media messages put into evidence by the prosecution. The prosecution claimed these messages were conversations with the appellant, while the defence suggested that some or all of the messages were created to frame the appellant. The prosecution’s evidence included messages that originated in a social media application called TextNow. These were collected by taking screenshots of the messages.
The Court of Appeal found several issues with the TextNow messages, including that the screenshots did not contain clear evidence about when the messages were sent. Nor did the prosecution provide evidence about how the TextNow application operated, the reliability of the application, or about any ability to manipulate its metadata. The Court noted that trial judges should be rigorous in examining this type of evidence both in terms of reliability and probative value.
In R. v. Aslami, the case against the accused was based primarily on circumstantial evidence, including the TextNow messages. The Court of Appeal found that the issues with respect to the circumstantial evidence were sufficient to raise reasonable doubt, and ultimately ordered a new trial.
There are many different social media applications, all with unique functionality, which makes collection of such messages particularly challenging. Ensuring your collection is defensible is an important first step. MT>3 regularly assists clients collect new types of social media evidence and is available to assist you.