Understanding the Canada Evidence Act for Social Media and Websites

Canada, like many jurisdictions, has specific regulations governing the admissibility of ESI, commonly referred to as the "Best Evidence Rule." The Canada Evidence Act (CEA) sets forth guidelines that are critical for legal professionals when handling electronically stored evidence (ESE) from social media platforms and websites. This blog post delves into these guidelines and shares best practices for navigating the evidentiary landscape of digital content in Canada.

The Legal Framework

The CEA, along with provincial statutes, outlines the foundational rules for the admissibility of electronic records in legal proceedings. Specifically, the Act addresses the challenges posed by the intangible nature of ESE, providing a framework that recognizes the legitimacy of digital documents as evidence under certain conditions. For content derived from social media and websites, this framework is crucial in determining whether such evidence can be presented in court.

Key Provisions for Social Media and Website Evidence

When it comes to evidence from social media and websites, several provisions within the CEA are particularly relevant:

• Section 31.1 defines an electronic document, encompassing a wide range of digital data, including content from social media and websites.
• Section 31.2 elaborates on the conditions under which an electronic document is admissible, emphasizing the importance of proving the document's integrity.
• Section 31.5 outlines the criteria for assessing the authenticity of evidence that is “automatically generated by a computer without human intervention.” This includes time stamps of social media posts, device login information, and additional metadata. 

Proving Integrity and Authenticity

For ESE from social media and websites to be admissible, proving its integrity and authenticity is paramount. This involves demonstrating that:

1. The electronic document system is reliable. The system used to record or store the digital evidence (e.g., social media platforms, website hosting services) must be shown to have safeguards against alteration and tampering. This is where simple screenshots and snipping tools often fall short, as they lack required accompanying metadata and do not provide safeguards to alteration.
2. The document has been preserved. The ESE must be maintained in its original form or in a form that does not materially alter its substance. This often requires the use of specialized tools designed for legal evidence collection, capable of capturing metadata, creating a verifiable chain of custody, and high-image quality preserving the original look of the evidence.
   

Relevant Court Cases: Voir Dire

• Wang v Liu, 2023 BCSC 972: In the Supreme Court of British Columbia, screenshots of WeChat were deemed inadmissible under the CEA due to a lack of proper authentication.

• Lenihan v. Shankar, 2021 ONSC 330: A wife spoofs electronic communications and social media posts, posing as her husband in a custody battle. In this case, the CEA rules created the groundwork for proving inauthenticity. In the era of deepfakes, this becomes increasingly important.

• R. v. Martin, 2021 NLCA 1: A trial judge excluded the use of six screenshot printouts of Facebook posts as evidence in a criminal case due to police’s inability to properly authenticate the screenshots. 

Collection Process: Best Practices

• Document the evidence collection process: Legal professionals should meticulously record how digital evidence was collected, including the use of any software or tools.

• Use a Legal-Grade Collection Tool: Simple screenshots using free or low-cost tools do not fully satisfy admissibility requirements under CEA. Using a tool like Page Vault not only satisfies admissibility requirements, but captures evidence quickly before it's deleted, saving time and risk.

• Understand platform-specific challenges: Each social media platform and website has its own set of technical characteristics and policies that can impact evidence collection. Familiarity with these nuances is essential. Read Page Vault’s Guide to Social Media Platforms for help on what to look for.
• Employ expert assistance: Given the technical complexities involved, consulting with digital evidence experts can enhance the credibility of the evidence collection and preservation process. Page Vault has a team of experts who collect and provide written certifications for online evidence in court.

Conclusion

As digital footprints become increasingly prevalent in legal contexts, understanding the application of the Canada Evidence Act to ESE from social media and websites is critical for legal professionals. By focusing on the integrity and authenticity of digital documents, legal practitioners can navigate the evidentiary challenges posed by digital content. Page Vault remains committed to providing the legal community with the tools and knowledge necessary to effectively manage and present digital evidence in accordance with the CEA and beyond.