An Indispensable Tool: Social Media Evidence and it’s Legal Implications Meghana Narayanan Media law Sat, Jun 24, 2023, at ,11:13 AM IntroductionIn 2008, a picture of a man holding an SKS assault rifle was found on his Myspace social media profile. This was used to convict him in a kidnapping case which involved the usage of an SKS assault rifle (Uncel 2011). In a 2007 case a woman lost custody of her child after her MySpace account revealed that she used illegal drugs and practiced sadomasochism (Goodfellow 2015). Social media usage has become a quotidian and widespread practice with the emergence of popular platforms such as Twitter, Instagram, YouTube, Pinterest etc. Users communicate achievements, daily life updates and other news, leading to a significant portion of their lives being documented online. Social media evidence refers to information stored online that can be utilized during the litigation process as a form of evidence. Social media evidence takes multiple forms such as videos, photos, comments etc. Due to its easy accessibility, permanency and affordability, social media evidence can prove to be a favorable route to extract evidence against an opposing party. Furthermore, Social media investigation services can help with retrieving information relevant to the case at hand. The usage of social media evidence is warranted in certain serious crimes like defamation. Furthermore, such evidence is of grave importance in order to deal with cybercrimes. Social media evidence can also help reconstruct events. It can be of great aid during terrorism trials wherein activities such as tweeting and exchanging of messages on WhatsApp can aid the criminal investigation process and the prosecution. In India, Section 65A and 65B of the Indian Technology Act, 2000 allow for the admission of electronic evidence in court. The sections further elucidate the conditions for admissibility. Social media evidence has also been discussed in cases such as Ajay Kumar V Delhi Police and Rahul Jayaprakash Sharma V State of Maharashtra. This paper sets out to explore the various aspects of social media evidence and the legal implications that are brought about through its usage in court proceedings. Authentication and authorship Questions surrounding the authenticity of social media evidence may arise during a trial. Attorneys may use the defense that their clients did not post/author the retrieved evidence. This is a legitimate possibility, considering the increasing number of cases involving the hacking of accounts. Like any other evidence, social media evidence needs to establish a chain of custody to demonstrate that it has been properly handled and preserved. This includes documenting who collected the evidence, how it was obtained, and how it was stored to ensure its integrity is maintained. For example, through Pham V Lee and Judge V Randell, it can be inferred that an internet review’s authorship can be deduced through ‘its contents and similarity to other writings’ (Joseph 2015). To authenticate social media evidence, proof of authorship must be established. Furthermore, the data must be preserved with no alterations. Metadata associated with social media evidence, such as timestamps, location information, and user profiles, can provide valuable context. It is crucial to preserve this metadata as it may be necessary to establish the authenticity and integrity of the evidence. This can be done through a record retention policy. Due to its easy modification, parties may also argue that the evidence has been tampered with and is false. Morocannoil V Marc Anthony Cosmetics highlighted the importance of substantiating social media evidence with circumstantial information. For example, in United States V Broomfield, it was held that a YouTube video may be authenticated through circumstantial evidence through the identification of the individual and items in the video, and the determination of when the video was recorded (Joseph 2015). State of Connecticut V Eleck and Tienda V State of Texas were cases which underscored the need to establish proof of authorship in relation to social media evidence. Commonwealth V Purdy stated that the defendant’s name alone cannot authenticate the evidence and its authorship being attributed to the defendant. Therefore, authentication along with authorship of the evidence is essential. Ethical considerationsLawyers have a moral and ethical duty to accurately portray evidence in court. Social media evidence must have authenticity, must be acquired through appropriate and ethical means. Attorneys should not use deceitful methods to access private accounts. Common law further entrenches the rules of ethics while carrying out an investigation. Obtaining information through unethical means could disallow the admission of the acquired evidence in the court proceedings.PrivacyPrivacy concerns must be considered when it comes to social media evidence. Courts must balance the need for evidence against individuals' reasonable expectation of privacy. If the social media content is publicly accessible or shared with a large number of people, the expectation of privacy may be diminished. This is further entrenched by a U.S Supreme Court decision. However, if the content is private or limited to a specific audience, additional hurdles may arise. In a 2012 case, police utilized Facebook in order to catch the defendants. This case brings to light the question as to whether law enforcement agencies can be allowed to arbitrarily access information for good policy reasons? Is privacy more important than conviction? In Romano V Steelcase Inc the court posited that there is no exception of privacy, irrespective of what privacy settings were used. Furthermore, there are now court cases wherein courts ask for direct login information to be given to the other party. An example of this is Largent V Reed, where the plaintiff was ordered to provide her Facebook login information to the defendant’s counsel (DiBianca 2014). Lori Andrews posited the “privacy as contextual integrity” (Chang 2013) theory, which propounds that different situations warrant the different application of norms. This could essentially mean that different rules could apply to privacy expectations in situations involving litigation and the usage of social media evidence. The issues arising out of social media evidence highlight conflicts between the law and science (Chang 2013). The emergence of new forms of technology alters the originally accepted world. This leads to debates surrounding which rights take precedence over the other.RelevancyEvidence extracted from social media should have relevance to the case at hand. Lack of relevance to the case may disallow admissibility of the evidence in court. For example, a case in which A has defamed B may warrant social media access. On the other hand, a case wherein A has grievously hurt B may not necessarily warrant social media access. However, this raises contentions, as relevancy may arise in any sort of case. It is not necessary that only a certain kind of case justifies the usage of social media evidence. Social media evidence may be used to establish a person's character or state of mind. For example, posts or messages demonstrating a person's intent, motive, or behavior may be relevant in criminal cases or civil disputes. However, the use of social media evidence for character assessment may also be subject to specific rules and limitations. For example, in the case where A grievously hurt B, the social media posts by A may point to the motive behind the act. Social media evidence can prove to be crucial points of information that could decide the outcome of various kinds of casesSexual harassment claims and relevancy Laura E Diss argues that although social media evidence provides attorneys with easily accessible data, it could serve to discourage plaintiffs from pursuing sexual harassment claims by putting forward prejudicial evidence. She exemplifies this by putting forward a hypothetical – An in-house counsel at a company investigates sexual harassment charges by an employee against an employer and finds that the employee’s social media accounts depict her wearing a tight-fitting dress, hence concluding that she would not mind sexual misconduct by the employer and goes on to dismiss the sexual harassment charges. Such social media evidence can be used to define the plaintiff’s behavior in professional spaces, hence causing the line between the plaintiff’s personal and professional life to be blurred. Often such evidence is irrelevant to the case at hand. This highlights the importance of introducing only relevant social media evidence (Diss 2013).HearsayHearsay refers to an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is generally inadmissible unless it falls within an exception to the hearsay rule. Social media evidence can often fall within the category of hearsay, which can pose difficulties. With respect to social media evidence, hearsay can be in the form of captions, messages, updates etc (Chang 2013). It is important to consider whether the statement is offered for the truth of the asserted matter. In people V Valdez the Myspace page of the defendant was brought in to support the victim’s statements (Chang 2013). The court deemed this evidence as admissible and did not employ the hearsay rule.Third-party platforms Social media evidence often involves information stored on third-party platforms, such as Facebook, Twitter, or Instagram. A major problem that arises is the non-cooperation by social media companies during the litigation process. These companies are often unwilling to disclose the information required. However, businesses must understand their obligation to preserve relevant data that could serve as evidence. Obtaining this evidence may require compliance with specific legal processes, such as subpoenas or search warrants, depending on the jurisdiction. It's important to be aware of the legal requirements and procedures for obtaining evidence from third-party platforms. For example, in Crispin V Christin Audigier, it was held that the Stored Communications Act in the U.S, forbade a ‘social networking site from producing a user’s account contents in response to a civil discovery subpoena. In that case, the defendants served subpoenas on several third parties, including Facebook and MySpace, seeking communications between the plaintiff and another individual. The plaintiff moved to quash the subpoenas. (DiBianca 2014).Jurisdictional challenges Social media platforms operate globally, and legal challenges can arise when seeking to obtain evidence from platforms based in different countries. Different jurisdictions may have varying laws regarding data privacy, cross-border requests, and mutual legal assistance, which can impact the accessibility and admissibility of social media evidence.Conclusion Social media usage has now taken up a significant portion of people’s daily lives. Social media evidence has therefore become an indispensable tool used by attorneys during the litigation process. Courts typically apply established rules of evidence to determine whether social media evidence is admissible. The evidence must be relevant to the case and meet the requirements of admissibility, such as being competent, material, and not unduly prejudicial. Courts may also consider factors such as hearsay, privacy concerns, and the credibility of the evidence in deciding whether to admit it. Attorneys should not ignore their ethical obligations while carrying out a search for social media evidence. Furthermore, they should also not overlook the power a simple and informal google search could hold. Attorneys must also authenticate their information. ‘The attorney who safely navigates the uncharted waters of social media evidence is the attorney who does not get distracted by the new context, but simply understands the parallels between the physical world and the online world. In both worlds, the rules of evidence and discovery still apply’ (Goodfellow 2015). In conclusion, the legal implications of social media evidence in court proceedings are profound and continuously evolving as technology advances and society becomes increasingly interconnected. The rise of social media platforms has presented both opportunities and challenges in the realm of evidence gathering and admissibility.ReferencesMegan Uncel, "Facebook Is Now Friends with the Court: Current Federal Rules and Social Media Evidence," Jurimetrics 52, no. 1 (Fall 2011): 43-70Goodfellow, Simon R. 2015. “SOCIAL MEDIA as Evidence: Navigating the Limits of Privacy.” Family Advocate 37 (4): 32–34. https://www.jstor.org/stable/24628710.Joseph, Greogry P. 2015. “Social Media: Social Media and Internet Evidence.” Litigation 41 (4): 8-9 https://www.jstor.org/stable/26401855.DiBianca, Margaret (Molly). 2014. “Discovery and Preservation of Social Media Evidence.” Business Law Today, 1–4. https://www.jstor.org/stable/businesslawtoday.2014.01.03.Da:, Presentata, Chih-Ping Chang, Coordinatore Relatore, Sartor, Alberto Artosi, and Giovanni Ziccardi. 2013. “Knowledge Production from Social Network Sites -Using Social Media Evidence in the Criminal Procedure.”Laura E. 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