Author: Mrudula Mohan


Introduction

The world is heading towards development with technology, innovations and discoveries. One of the biggest technologies used by every citizen of the world, both in good and bad ways, is social media such as Facebook, Twitter, YouTube, WhatsApp, etc. Social media can be defined as interactive computer-mediated technologies that facilitate the creation and sharing of information, ideas, career interests and other forms of expression via virtual communities and social networking services. But can anything said or posted or communicated personally through this medium be used in a court of law as an evidence to prove or disapprove occurrence of any event is a matter that used to be dealt with in the discretionary power of the court.

Though with the increase in the technology there has been an increase in crime. And the crime through these technologies, popularly known as, Cybercrimes which at one point of time was not recognized or believed to be existing but is now studied as a different branch of studies and expertise. Not just the cybercrime where the communication has to be presented before the court to prove the existence of the crime, the comments and opinions of individuals are also now presented before the court to show the seriousness of certain crimes or to prove the defamation caused to them. We are living in a contemporary world where from the invitation of a wedding to the summons by the court are being severed through social media, here, WhatsApp being used as an active medium.

Investigating agencies in India who are referred to as intelligence agencies and police forces have produced messages posted by individuals on Facebook, Twitter and other social media platforms as evidence in court against those who were arrested for supporting or joining the Islamic State (IS) or any other terrorist outfit, as according to senior government official said. The Union Home Minister Rajnath Singh has recently accepted during a Press Meet in 2016 that the government has developed a blueprint on such social media strategy against the IS for effective monitoring of the Internet and the Dark Web considered as the hotspot of recruitment by the terrorist outfit. Keeping the government’s efforts in checking the terrorist activities aside, let us consider the effects of criminal law and common people like online harassment through cyberspace. Any medium of communication that can connect the world through network and electronic devices are called as cyberspace. In the 2016 estimation, the criminal records through cyberspace are higher than it was in 2008.

Evidentiary Value Of Social Media Post/Messages:

Inquiring into the evidentiary value of social media communication requires a snapshot of Criminal Procedure Jurisprudence. There are certain advantages and good policy reasons for accessing social media evidence used in criminal proceedings. Photos can be uploaded quickly and shared within seconds. They can alert authorities to crimes in progress, those about to be committed, or those already commissioned. When it comes to the admissibility of social media evidence, the key is to make sure that you are accessing the information in a permissible manner.  Generally, a lawyer investigating a case may access the public portions of an individual’s social media account and try to identify whether any of their social media profiles may contain evidence relevant to the case. According to Common Law rules, one must also consider the applicable rules of ethics for conducting pre-litigation investigations, for example, it is inappropriate and unethical to bypass privacy settings or “friend” someone in an effort to gain access to private or non-public portions of the subject’s account. Moreover, this type of conduct can eliminate the admissibility of social media evidence in court.

It is also important to note that the information discovered on the public portion of an individual’s social media account can provide a “good faith belief” that relevant data will be found on non-public accounts belonging to the individual.  In these instances, you may be able to get a court order to access that data. It is imperative for legal teams to conduct ethical and compliant social media evidence collection. SMI Aware’s team of certified analysts in the US utilizes our proprietary technology to search social media, search engines, and the deep web, our in-house analysts locate, capture, and preserve the social media evidence that evades most investigators while complying with the highest standard of ethics and ensuring defensibility in court.

In India, since 2000 we have formed a separate division of cyberspace crime investigation department and a separate legislation namely the Information Technology Act, 2000 and other supplementary cyber laws to deal with such offences. Rarely, though, such cases are dealt with the special court. The screening process for admission of all online articles and posts and messages for being admissible remain the same as detailed in previous article newspaper as evidence and through Section 22A of Indian Evidence Act, according to which,

22A. When oral admissions as to contents of electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.

Yet in several cases, including rape, uses such evidence are displayed before the magistrate, judges before whom the case is pending to justify the fact. Therefore, the English law principle of “party’s parole admissions receivable to prove the contents of a document without notice to prove or without accounting for the absence of original” is not applicable under Indian Laws.

International Cases:

Romano V. Steelcase Inc.[1]

A New York personal injury case from September 2010, the court granted the defendants access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information,” even though this information wasn’t publicly available. The reason? Her Facebook profile “shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.” The court ruled that allowing the plaintiff to “hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial”. The court stated that there is no expectation of privacy, no matter what privacy settings were used.

Zimmerman V. Weis Markets, Inc.[2]

In this Pennsylvanian personal injury case from May 2011, the defendants established that there was privately protected content relevant to the case at hand based on the public information shown on the plaintiff’s Facebook page. The plaintiff’s Facebook page showed that his interests included ‘riding’ and ‘bike stunts’ and displayed recent pictures of the plaintiff with a black eye and his motorcycle after an accident. The judge ruled in the defence’s favour to permit discovery and they gained access to the non-public portions of the plaintiff’s Facebook and MySpace pages to refute the plaintiff’s claim that a forklift accident caused permanent injury to his health and wellness.

Allied Concrete Company v. Lester[3]

Another injury case, this was filed in January of 2013 by Isaiah Lester, whose wife Jessica was killed in a car accident. Some of the information on his Facebook page appeared to be harmful toward his character. Fearing it could be used to discredit his client, Lester’s attorney told him to “clean up” his Facebook and MySpace accounts by deleting his insensitive photos, because “We don’t want any blow-ups of this stuff at trial.” Lester deleted the accounts, and his attorney’s office then signed discovery responses denying that he had any such accounts. The defense filed for spoliation of evidence, which the judge ruled in favor for, ending in monetary fines for Lester and his attorney.

Ingrid & Isabel, Llc V. Baby Be Mine, Llc[4]

This June 2014 case is different from the others; in this trademark infringement case, the plaintiff claimed that the defendant’s product, Belly Band was eerily similar to their trademarked product the Bella Band. The court compelled the defense to produce all customer comments on the defendant’s Facebook and Twitter accounts regarding the Belly Band as evidence of the trademark infringement.


[1] ROMANO V. STEELCASE INC 2010 NY Slip Op 20388 [30 Misc 3d 426]

[2] Zimmerman v. Weis Markets, Inc., PICS Case No. 11-0932 (C.P. Northumberland May 19, 2011)

[3] ALLIED CONCRETE COMPANY, et al. v. Isaiah LESTER, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester. Record Nos. 120074, 120122.

[4] Ingrid & Isabel, LLC v. Baby Be Mine, LLC et al, No. 3:2013cv01806 – Document 67 (N.D. Cal. 2014)


About the Author: Mrudula is a fourth-year student at Amity Law School, Noida.


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