The Legal Foundation for Digital Records
For the use of electronic communications to be lawful, the parties communicating and any third party must consent to their use. Consent is an important special rule that applies only to communications that have been preserved.
However, with the enactment of the Electronic Evidence Act 1997 ("EEA"), evidentiary presumptions came to be available for the authenticity, contents, reliability and integrity of electronic communications. Pre-EEA, the admissibility of electronic communication was dependent on establishing or eliminating the limits set out in the special rule. Admissibility of the electronic evidence was determined as follows:
(a) the party must have obtained the consent (that is, express or implied consent under s45 of the Evidence Act 2008) of each other party to the communication; and
(b) the document or thing containing the communication (that is, the server – e.g. Google drive, Dropbox – or the device) must be in either:
(i) the party’s custody or control; or
(ii) if not in the party’s custody or control, (say a spouse’s mobile phone) the other party’s custody or control, on one or more of the conditions set out under s70 of the Evidence Act 2008, namely , that:
(a) the other party agrees to the exhibit being tendered;
(b) the other party doesn’t object;
(c) there has been similar communications to which neither party objects; or
(d) both parties are present and do not object.
In addition, clear and credible evidence of the circumstances under which the party did or did not consent to their use is required at the time of using the communication in proceedings.
With the enactment of the EEA, evidentiary presumptions are available for admissibility of an electronic communication to which an EEA Notice has been given by a party to whom the communication was addressed. This is provided the court is satisfied that the notices have been duly served or there is some other evidence that the notices were received by the addressee. Further, when one of the parties to the communication did not consent, further obligations must also be satisfied including:
(a) ensuring the communication is in comprehensible form;
(b) removing any encryption or coding; and
(c) providing the party some reasonable opportunity to examine the communication other than in court.
The EEA further provides that when a communication is sent or received in the course of a business, a party’s belief that the communication was sent or received or the person intended to send or receive the communication is enough to establish the communication.
When do messages sent or received on Facebook get admitted into court?
Even if a court finds that Facebook messages are hearsay, those messages may still be admissible if they relate to certain relevant issues, such as notice or knowledge. See Johnston v. Univ. of Chicago, 431 N.E.2d 1152 (Ill. App. Ct. 1982); People v. Leach, 797 N.E.2d 1100, 1106 (Ill. App. Ct. 2003). Some courts have declined to find that Facebook messages are admissible as evidence of notice or knowledge unless the plaintiff provides a printout of the Facebook messages, which clearly includes information about the posting, such as date, time, sender, recipient, and content. See Malorrusso v. FSONS, LLC, 2014 Mass. Super. LEXIS 40, at *1-2 (Mass. Super. Ct. Mar. 6, 2014) (citing Boults v. Town of No. Hempstead, 26 Misc. 3d 228, 888 N.Y.S.2d 827 (N.Y. Dist. Ct., Nassau County 2007)); Bullard v. Kanaan, No. 224077, 2001 WL 1827002, *4-*5 (Va. Cir. Ct. Nov. 27, 2001) (finding that unless the proffered posting includes all identifying information, it cannot be authenticated and would therefore be inadmissible). See also Rios v. Smith, 5 Misc. 3d 985, 785 N.Y.S.2d 844 (N.Y. Sup. Ct. 2004) (finding a printout of a photograph from the Internet was inadmissible because it lacked a "sufficient foundation" as to how the copy was obtained, when it was obtained, the reliability of the generating system, or its relevance to the alleged acts in question). Facebook messages may also be deemed admissible if they are "of substantial probative value and the danger of unfair prejudice does not substantially outweigh its value." Id.; see also Leach, 797 N.E.2d at 1106 ("Even if the court thought such evidence was technically hearsay, it could properly conclude that the probative value of the May 31, 1999 message was not substantially exceeded by the danger of unfair prejudice.").
Authenticating Facebook Messages
This extends beyond simply logging into the victim’s profile to prove they used that account; Judges also want to know how you prove that a message is an accurate representation of what was presented to the victim. Vorhees v. Nevaeh, 2014 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. May 7, 2014) illustrates exactly how this should be done. In that case, the parties used "dummy" Facebook accounts to carry out harassment. The victim via sworn affidavit testified that she received due to her mother’s permission, a Facebook account from which messages were sent to her. However, the court held that without more effort it would not admit them. The issue was the overly simple admission of Facebook materials. The impersonator and the victim were not "friends" on Facebook so he could not simply click "send". Instead, he had to send a "friend request" to the victim. The request had to be accepted by the victim. Presumably the victim had to log onto her profile and open the "friend request notifications" using a device. In other words, if she had accepted the request, a message would appear in her inbox stating that she had received a request from "Courtney Sitka" and identifying the "Courtney Sitka" account as the origin of the request. However, the victim did not lay that foundation in support of admitting the messages. She simply claimed that she had logged onto Facebook and viewed the content with no further specifics. The Court rejected this and noted it wanted to know: (1) Whether the request was ever approved by the victim or whether she was aware of it; (2) If the victim was never friends with the account, how could she communicate with the person without sending a friend request as well? (3) If (2) applied, what steps were taken to authenticate the accuracy of the messages? In other words, in order for the records to be authenticated, the parties had to demonstrate the likely scenario, the likely exchange of information using the Facebook system, and then that there was no other possible explanation for the exchange.
Where Courts Struggle
Despite the many advantages offered by Facebook and other popular social media platforms, this is not to say that the use of such evidence is straightforward. There are several hurdles or challenges which may be encountered when using Facebook messages as a form of evidence when litigating a court case. One issue which was highlighted in the recent case of Ghaffari v. the Source for Sports was the privacy implications. Privacy is a big issue on the Internet, and can be very complex when considering what is private and what is public. In the case of Facebook messages, these messages may only be available to the parties who have been invited to the conversation and are therefore private. It has even been held that a person may be entitled to damages if another party intercepts their private Facebook communications without permission. However, the issue of access whereby the parties may be "friends" on Facebook, and therefore have access to the Facebook page itself, the Facebook messages are generally assumed to be available to the relevant people. All that may be required in this case is an "excellent link" to a particular message , text or post which is at issue in the case. There are also potential issues with retrieving the messages from Facebook if they have been deleted or archived. In order to retrieve evidence from Facebook, you will need to be sure to get the right evidence. In situations where there are no relevant backup files, Facebook users may be better off using the download archive link available in the settings section of each account. For those people who have already archived their messages through Facebook, a professional can access the information quickly and easily. Another issue is that many people editing their messages. Not a lot of people are aware of this, but it is possible to edit Facebook messages to some extent. All that is required in this case is an initial screen shot, however, plus timestamps along with direct quotes from the original Facebook message. The ability to alter the messages after the fact means it is entirely possible that the person being "messaged" may go back later, to cover their tracks, and change the content of these communications once they know they are going to be used as evidence. It is clear, therefore, that while it may be possible to use Facebook messages in Litigating a court case, there are many challenges to overcome in doing so.
Examples and Case Law
In State Farm Mut. Auto. Ins. Co. v. Egan, 980 A.2d 14 (Pa. Super. Ct. 2009) the defendant’s attorney attempted to get a photo from Jennifer Egan’s Facebook page that showed Egan’s knee in a straight extension position while on crutches into evidence at trial. The plaintiff had been in an auto accident which required surgery and afterwards, was suing for compensation for her injuries. The court explained that "to be admissible in evidence, a document must be properly authenticated." Id. at 18. The Superior Court of Pennsylvania affirmatively stated that Facebook, as long as it was authenticated, could be used as evidence in a court of law despite the generally low value of certain kinds of Facebook messages as legal evidence.
In another Pennsylvania case, the defendant’s attorney in Mortgage Specialists v. Implode-Explode, LLC, No. 2009PM-0614 (Pa. Ct. Common Pl. 13th Jud. Dist., Aug. 4, 2009), again in a discovery related dispute, called for the plaintiff’s opposition to authenticate a Facebook posting. The court explained that, because it was in the middle of the discovery process, "to lay a proper foundation for the admission of a printout of a Facebook posting into evidence, a party need only show the posting has been properly authenticated at the time of trial." फैस Egan at 17.
Practice Tips for Attorneys
A word of caution: Lawyers practicing in this area should be aware of the back-and-forth in the divorce court about how these csv files sourced from Facebook are subject to the ability of Facebook to release the content. The best practice is to upload what you obtain to the "Client Evidence" section of the case file so that the parties can discuss whether the content is admissible.
- Collection: When collecting Facebook messages or other communications, lawyers should be mindful of Facebook’s protocols to preserve the integrity of that material in advance of its use in court. Due to Facebook’s response times to discovery requests, lawyers should try to get this material early in cases where it may be at issue. Lawyers should always seek the advice of a technical expert when collecting social media evidence. The technical expert will know the best method(s) to collect the evidence and the appropriate format to collect it in .
- Presentation: Technical experts should help lawyers understand how to present Facebook messages in court. In most divorce situations, lawyers will likely want to download and print the messages verbatim, or screenshot the messages and obtain a forensic analysis of the messages.
- Anticipating counterarguments: When presenting Facebook messages in court, lawyers should be prepared to address counter arguments that may be raised about the admissibility of that evidence. There is an excellent discussion of how that may happen in a case between singer Justin Bieber and an accused paparazzi. Lawyers need to be prepared to respond to counter arguments almost immediately after they present the evidence, so working with technical experts and being preemptive is key to having the best chance of having this evidence admitted.