Written by Sim Qian Hui | Edited by Josh Lee Kok Thong
We’re all law and tech scholars now, says every law and tech sceptic. That is only half-right. Law and technology is about law, but it is also about technology. This is not obvious in many so-called law and technology pieces which tend to focus exclusively on the law. No doubt this draws on what Judge Easterbrook famously said about three decades ago, to paraphrase: “lawyers will never fully understand tech so we might as well not try”.
In open defiance of this narrative, LawTech.Asia is proud to announce a collaboration with the Singapore Management University Yong Pung How School of Law’s LAW4032 Law and Technology class. This collaborative special series is a collection featuring selected essays from students of the class. Ranging across a broad range of technology law and policy topics, the collaboration is aimed at encouraging law students to think about where the law is and what it should be vis-a-vis technology.
This piece, written by Sim Qian Hui, seeks to demonstrates the need to rethink the evidentiary landscape in the age of social media. The use of social media evidence in court proceedings is plagued with uncertainty. By assuming that people present themselves in the same way online and offline, the courts misinterpret the relevance of certain types of social media posts. The courts lack understanding on social media culture and draw mistaken inferences from common types of social media conduct. Further, the overly broad discovery of social media content violates an individual’s right to privacy. Accordingly, courts must consider the unique properties and social norms surrounding social media when utilising social media evidence. Given that social media has become part of today’s society, courts ought to ensure the continued relevance of the evidentiary regime.
Introduction
The increasing widespread use of social media has given litigants opportunities to introduce new sources of evidence. Although social media evidence is admissible and discoverable,[1] its unique properties pose new challenges. As with most advances in technology, the law is struggling to keep pace with the social media revolution. This paper submits that there is a need to rethink the evidentiary landscape in the age of social media.
Evidentiary concerns about social media evidence include hearsay, authentication, and reliability issues. It should be clarified that the focus of this paper is on the court’s use of social media evidence. That is, assuming reliability and authenticity issues are resolved:
- How should courts determine the relevance of social media content?
- How should courts interpret and draw inferences from social media evidence?
- How should courts define the search parameters for discovery of social media evidence?
Section II sets the scene by demonstrating the increased relevance of social media content. It highlights that despite its increasing relevance, courts have yet to develop a comprehensive approach to utilise social media evidence.
Section III demonstrates the lack of clarity of how social media evidence should be used in court. The first part to Section III demonstrates how courts misinterpret the relevance of certain social media content. The second part considers whether courts should look beyond the face value of social media content when interpreting and drawing inferences from evidence.
Section IV demonstrates the lack of clarity of the extent parties can search for evidence on social media. The first part to Section IV examines the troubling approaches courts have taken to address privacy issues. The second part considers whether users should have an expectation of privacy on social media.
Following these criticisms, Section V highlights the need to adapt the law to technological change. It proposes a more methodical approach to utilise social media evidence.
Increased relevance of social media evidence
Consider these three (separate) scenarios: you are charged in court for posting a crude comment on Twitter.[2] In a divorce proceeding, the husband’s racy photos on Instagram are revealed.[3] A defendant’s testimony is refuted by her clubbing updates on Facebook.[4]
These scenarios are becoming more prevalent due to the rise of Web 2.0.[5] As people live out their lives online, social media has become a trove of information for litigants. Social media content is being increasingly produced as evidence in court proceedings. Status updates and photos can be used as an alibi or to challenge an opponent’s credibility.[6] The volume of content posted on social media becomes both an opportunity and pitfall for litigants.
Lack of clarity on how social media evidence should be used in court
Courts misinterpret the relevance of certain social media content
Courts have sought to develop methods to assess the relevance of social media evidence.[7] Nonetheless, uncertainty remains. In EEOC v Simply Storage, the court explained that the victims’ social media profiles, postings, and third-party communications were relevant to determine if workplace sexual advances were unwelcomed.[8] This approach was criticised for producing prejudicial and irrelevant evidence.[9] The sexually provocative messages with third parties were particularly irrelevant.
In contrast, the court in EEOC v Honeybaked Ham took a more restrictive approach.[10] It agreed to provide only relevant content that gave insight into the victims’ sexual activities and emotional state related to the lawsuit.[11] A photograph of the victim wearing a shirt with a vulgar slang printed was found to be potentially relevant.[12] In addition, her self-described sexual aggressiveness was also found relevant.[13] These are arguably not related to the lawsuit. Although a person enjoys certain sexual activities in her private life, it does not necessarily mean that she would not find the same activity offensive in a workplace setting. Notwithstanding that this approach might limit the use of prejudicial evidence, it still does not shed light on what constitutes relevant social media content. Hence, there is still a risk of using prejudicial evidence.
In another instance, a sexual assault victim testified that she had never pretended to be above 18 years old.[14] Her credibility was called into question as she had misrepresented her age on her MySpace profile.[15] However, there was no evidence that the account was known to the accused.[16] The court acknowledged that the misrepresentation could be due to the age restrictions imposed by MySpace. Nonetheless, it held that the social media profile was relevant to discredit the victim’s testimony. This decision is problematic as the court made false assumptions that the victim would similarly misrepresent her age in real life.
Is a victim’s social media activity an accurate depiction of her sexual activities and emotional state? Do people behave the same way on social media and in real life? As seen from the cases, courts seemed to wrongly assume that people present themselves in the same way online and offline.
Should courts take social media evidence at face value?
Although social media is an evidentiary goldmine, courts need to bear in mind that online, the concept of truth is fleeting.[17] When determining relevancy, the appropriate question to ask is whether courts should take social media evidence at face value. This Part submits that the social media context should not be ignored as it might lead to potential misapprehension of evidence. The next Part submits that courts need to bear in mind that social media is a tool for fabrication of people’s lives.
The potential misapprehension of evidence
Courts do not consistently give weight to conduct taking place against a social media context. This inconsistent manner of analysing social media content engenders more uncertainty in utilising this form of evidence. In R v Le Seelleur, the accused was frustrated with the (English) Prime Minister and posted a comment on Twitter indicating that she wanted to “bomb her”.[18] Despite the accused’s claims that she posted the tweet in the heat of the moment, the court concluded that her tweet was meant to intimidate. Accordingly, she was convicted. On the other hand, R v Sather came to a different conclusion. The accused posted several comments on his Facebook account which conveyed a threat to cause bodily harm.[19] The court found that any reasonable person reading the comments would perceive it as a threat. Nonetheless, the accused was acquitted.
The difference in outcome can be explained by those courts’ lack of understanding about social media culture. In Sather, the court considered that people might make provocative comments on social media just to evoke responses.[20] In contrast, the court in Le Seelleur did not consider the social media context. This might lead to potential misapprehension of evidence.[21]An individual’s behaviour is regulated by four constraints – the law, social norms, the market, and architecture.[22] According to Lessig, “norms constrain through the stigma that a community imposes; markets constrain through the price that they exact; architecture constrains through the physical burdens they impose; and law constrains through the punishment it threatens.”As in real space, these four modalities regulate cyberspace;[23] courts need to bear in mind that, in this light, behaviour on cyberspace can differ from behaviour in the real world.
Social media is a tool for the fabrication of people’s lives
Thus, it is submitted that courts should not take social media evidence at face value. Firstly, social media platforms enable users to construct an idealised persona to portray to others.[24] Users tend to conform with the social norm of projecting happiness on social media.[25] Photographs and status updates present biased impressions of a user’s emotional state. Thus, social media magnifies the expression-experience discrepancy.[26] Next, a user’s behaviour on social media is not an accurate depiction of self. It is merely an aggrandisement based on whom he or she aspires to be, or whom he or she believes others will find appealing.[27] It is erroneous to assume that an individual’s social media profile is reflective of their true identity.
Courts should be mindful that people use social media to fabricate certain personas. The current approach in utilising social media evidence suggests the lack of appreciation for users’ psychosocial motives on social media.[28] Therefore, courts should look beyond the face value of social media content when assessing its relevance and weight in legal proceedings.
Lack of clarity of the extent parties can search for evidence on social media
Overly broad discovery of social media content violates an individual’s right to privacy
As seen from the cases, social media evidence is admissible and discoverable. However, court decisions offer little insight into the boundaries of social media discovery. This issue arises because privacy concerns are often cited as the basis to object to social media discovery.[29] Nonetheless, privacy objections have been brushed aside by courts.[30] For instance, the court in Simply Storage held that privacy settings on social media is not a bar to discovery.[31]
However, overly broad discovery of social media content may unreasonably intrude into a person’s life.[32] In particular, it allows access to personal information that is unrelated to the proceedings.[33] Courts have yet to develop a comprehensive approach to balance a litigant’s privacy interest against an opponent’s need for discovery.
In Romano v Steelcase, the court granted the defendant full access to the plaintiff’s Facebook and MySpace information.[34] The discovery request is overly broad as it included any information that had previously been deleted or archived.[35] Similarly, the court in McMillen v Hummingbird Speedway allowed full and unfettered access to the social media accounts.[36] The plaintiff was directed to produce not just his social media information but also the passwords and login information for each of his accounts.[37] This clearly violates the plaintiff’s right to privacy and the terms of service for social media platforms.[38] For instance, Facebook’s terms of service state that users are not to give their passwords to others.[39]
Courts have failed to make any distinction between public and private content; friends-only and one-on-one communication with one party.[40] By granting full access, courts did not define the scope of relevant and discoverable content. One commentator analogised this with forcing individuals to hand over their house keys for others to rummage everywhere.[41] Such a broad approach would be deemed absurd in the real world. Yet, it is allowed in the social media arena.
Should there be an expectation of privacy on social media?
Although cases establish that there is no expectation of privacy on social media,[42] the appropriate question to ask is whether there should be an expectation of privacy. This Part argues that the arguments against privacy are flawed. Accordingly, it is submitted that there should be a reasonable expectation of privacy. First, privacy concerns should adapt to the social media revolution. Second, the unique features of social media emphasises that users would have different expectation of privacy for different types of content.
Privacy in the social media age
The court in McMillen stated that people convey confidential and personal information to others on social media platforms.[43] It went as far as to state that users should have chosen another form of communication if they wanted the content to stay private.[44]
This argument is flawed as it ignores the realities of how society is evolving in the social media age. Individuals should not be expected to stay away from technology just to retain privacy.[45] Social media has changed the way people communicate and build relationships with one another. Even though social media platforms facilitate sharing of information, the amount of detail contained in the account implicates important privacy concerns. New technology calls for next steps to be taken to protect individuals.[46] Hence, privacy concerns should change to adapt to the new realities of people living their lives online.[47]
Varying degrees of privacy expectations
Commentators have argued that with the greater freedom to share information, there is consequently a greater probability of revealing what was once private and confidential.[48] Courts have dismissed privacy concerns by explaining that the nature and purpose of social media platforms is to make information available to the world at large.[49]
It is too simplistic to assume that users agree to disseminate their data just because they publish it on social media.[50] The arguments against privacy are made without considering the multifaceted nature of social media platforms. Although its key feature is to share information, the unique feature of social media allows varying degrees of privacy settings.[51] This gives a user control over who sees his personal information.[52] In addition, it enables the user to customise the visibility of different types of information. Users can limit selected content to a specific audience. For instance, the user can set the visibility of his Facebook posts to “Friends only” and limit the audience of his tagged photos by selecting “Only me”.[53] Instagram’s “Close Friends list” enables the user to further limit the audience to a selected few in his “friends” list.[54]
Since social media platforms differentiate public and private content, users expect some privacy for private content.[55] By limiting the privacy settings to “Friends Only”, the user has shown that he seeks to preserve some degree of privacy. The varying levels of privacy further emphasizes that users would have different expectations of privacy for different types of content. Granting full access to a user’s account would reveal a wide range of information. This includes his connections, communications, thoughts, and activities. It would be overly intrusive to allow broad access as it would render the user-controlled privacy settings otiose.
Adapting the law to technological change
The way courts have used social media evidence evinces the courts’ lack of understanding of social media platforms. This engenders more confusion than clarity in court proceedings. Given social media’s prevalence in modern society, it is impractical for courts to bar social media evidence entirely. There is a need to adapt the laws to technological change given the pace of technological development. This Section proposes a more methodical approach to utilise social media evidence.
Firstly, courts should be mindful of the social norms surrounding social media platforms.[56] This includes the user’s psychosocial motives on social media. Courts should limit social media evidence that allegedly portrays an individual’s mental state and behavior. Instead, it should narrow the scope of admissible social media content to those that directly relate to specific events of the lawsuit.[57] For instance, a minor victim of sexual assault claims that she had never misrepresented her age to the accused. The social media evidence shows that the accused had sent a twentieth birthday wish to the victim on Facebook, to which the victim responded. This relates directly to the victim’s claim. In this scenario, the court should also consider whether Facebook’s policy imposes any age restrictions. The minor might misrepresent her age on Facebook to create an account. A narrow scope of admissibility ensures that irrelevant and prejudicial evidence will not be used. As a starting point, courts could use doctrines against similar fact evidence to develop a more rigorous treatment of social media evidence.
Next, privacy concerns should be seen on a spectrum.[58] An all-or-nothing approach to privacy concerns is insufficient due to the complex features of social media.[59] Courts should ask whether the individual has taken steps to reasonably limit access to the information.[60] If a user accepts the default privacy settings, the court could hold that they have not taken reasonable steps to protect the information. Thus, they have no expectation of privacy. On the other hand, if they changed their profile settings so that only a limited number of “friends” had access to certain information, the court could find that they should have some privacy for the private content. Following this approach, courts can differentiate subsets of information to determine whether discovery is warranted.[61] For instance, information can be divided into categories including (i) public data; (ii) published data shielded with privacy settings; (iii) data created by others in which the user is merely tagged; and (iv) data stored by the social media platform which is unpublished by the user.[62] Nonetheless, the extent of discovery should still depend on the circumstances of the case. In the sexual assault victim example, the private communications between the victim and accused on Facebook may be discoverable if it relates directly to the claim of misrepresentation.
Conclusion
This paper demonstrates the need to rethink the evidentiary landscape in the age of social media. As with most advances in technology, the law is struggling to keep pace with the social media revolution. Due to the courts’ lack of understanding of the social norms and unique features of social media platforms, the use of social media evidence in court proceedings is plagued with uncertainty. Given that social media has become part of today’s society, there is a need for reforms to ensure the continued relevance of the evidentiary regime.
This piece was published as part of LawTech.Asia’s collaboration with the LAW4032 Law and Technology module of the Singapore Management University’s Yong Pung How School of Law. The views articulated herein belong solely to the original author, and should not be attributed to LawTech.Asia or any other entity.
[1] Sylvia Low, “Lawyers and Social Media: A New Evidentiary Landscape” Law Gazette (2011) https://v1.lawgazette.com.sg/2011-06/132.htm(accessed 2 November 2021) In Singapore, social media content is admissible under the Electronic Evidence Provisions in the Singapore Evidence Act. Similarly, in the United States, social media content is admissible as electronic evidence under the Federal Rules of Evidence.
[2] Two British tourists were charged and barred from entering America after posting on Twitter that they were going to “destroy America” and “dig up Marilyn Monroe.” Richard Hartley- Parkinson, “I’m going to destroy America and dig up Marilyn Monroe”: British pair arrested in U.S on terror charges over Twitter jokes, DailyMail.com (2012) <https://www.dailymail.co.uk/news/article-2093796/Emily-Bunting-Leigh-Van-Bryan-UK-tourists-arrested-destroy-America-Twitter-jokes.html> (accessed 13 January 2022)
[3] A Mandopop singer’s wife took to social media to accuse him of various infidelities and abuse. Screenshots of social media content alleging infidelity were released on the Internet to support her claims. Jan Lee, “Singer Wang Leehom’s ex-wife releases expose, alleges multiple infidelities,” The Straits Times (2021) <https://www.straitstimes.com/life/entertainment/singer-wang-leehom-ex-wife-releases-expose-alleges-multiple-infidelities> (accessed 13 January 2022)
[4] In the murder trial of Casey Anthony, the prosecution sought to use the pictures of the defendant dancing at a nightclub to refute her claim that she had been searching for her daughter. Tim Ott, “Casey Anthony: A Complete Timeline of Her Murder Case and Trial,” Biography (2020) <https://www.biography.com/news/casey-anthony-muder-trial-timeline-facts>
[5] Web 2.0 refers to Internet use that includes new ways to create content and share information through online social networking.
[6] John G. Browning, “Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites,” SMU Science and Technology Law Review (2011) at 468.
[7] Laura E Diss, “Whether you like it or not: The inclusion of social media evidence in sexual harassment cases and how courts can effectively control it,” Boston College Law Review (2013) at 1845.
[8] Id, at 1852, citing EEOC v Simply Storage Management [2010] 270 F.R.D. 430.
[9] Id, at 1853.
[10] Id, at 1854, citing EEOC v Original Honeybaked Ham 2012 WL 5430974.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Brock Jones, “The Courts Liked Your Post: Assessing Social Media Evidence in Criminal Proceedings,” Criminal Law Quarterly (2015) at 374, citing R v Duran [2013] O.J. No. 2388.
[15] Id, at 375.
[16] Ibid.
[17] Daniel S. Harawa, “Social Media Thoughtcrimes,” Pace Law Review 366 (2014), at 387.
[18] Id, at 382, citing R v Le Seelleur 2014 QCCQ 12216.
[19] Id, at 381, citing R v Sathers 2008 ONCJ 98.
[20] Id, at 382.
[21] Id, at 380.
[22] Lawrence Lessig, Code version 2.0 (Basic Books, 2006) at p 124.
[23] Ibid.
[24] Kathryn R. Brown, “The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs,” Vanderbilt Journal of Entertainment and Technology Law 357 (2020) at 365.
[25] Id, at 382.
[26] Id, at 367. This is the difference between an individual’s outward expression and internal experience of an emotion.
[27] Supra n 17, at 375.
[28] Supra n 24, at 381.
[29] Supra n 6, at 485.
[30] Ibid.
[31] Supra n 7, at 1852.
[32] Agnieszka A. McPeak, “The Facebook Digital Footprint: Paving Fair and Consistent Pathways to Civil Discovery of Social Media Data,” Wake Forest Law Review 48 (2013), at 943.
[33] Id, at 920.
[34] Supra n 6, at 494, citing Romano v Steelcase Inc 907 N.Y.S.2d 650 (2010).
[35] Ibid.
[36] Id, at 486, citing McMillen v Hummingbird Speedway Inc 2010 WL 4403285.
[37] Ibid.
[38] Supra n 32, at 943.
[39] See Terms of Service of Facebook. Clause 3.1 provides that “…you must: … Not share your password, give access to your Facebook account to others, or transfer your account to anyone else.”
[40] Supra n 32, at 932.
[41] Id, at 943.
[42] Supra n 6, at 491.
[43] Supra n 32, at 932, citing McMillen v Hummingbird Speedway Inc 2010 WL 4403285.
[44] Ibid.
[45] Id, at 936.
[46] Samuel D, Warren; Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review Vol. 4 No. 5 (1890), at 195.
[47] Id, at 933.
[48] Supra n 6, at 485.
[49] Ibid.
[50] Supra n 32, at 936.
[51] Id, at 893.
[52] Ibid.
[53] See Facebook basic privacy settings and tools. Facebook website <https://www.facebook.com/help/325807937506242> (accessed 15 November 2021)
[54] See Instagram close friend list features. Instagram website <https://help.instagram.com/2183694401643300> (accessed 15 November 2021)
[55] Supra n 32, at 930.
[56] Supra n 24, at 386.
[57] Supra n 32, at 942.
[58] Supra n 32, at 937.
[59] Ibid.
[60] Teri Dobbins Baxter, “Low Expectations: How Changing Expectations of Privacy Can Erode Fourth Amendment Protection and a Proposed Solution,” Temple Law Review 84 (2012), at 633.
[61] Supra n 32, at 938.
[62] An example of unpublished data would be a user’s search history.
This piece was published as part of LawTech.Asia’s collaboration with the LAW4032 Law and Technology module of the Singapore Management University’s Yong Pung How School of Law. The views articulated herein belong solely to the original author, and should not be attributed to LawTech.Asia or any other entity.