“your honour, according to wikipedia…” court perspectives on internet media
TRANSCRIPT
“Your Honour, according to Wikipedia…”
Court Perspectives on Internet Media
Serving Documents Using Social Media
Citigroup Party Ltd. V. Weerakoon [2008] QDC 174, 1 (Austl)
I am not so satisfied in light of looking at the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the true person’s identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant, even though practically speaking it may well indeed be the person who is the defendant.
Serving Documents Using Social Media
MKM Capital v. Corbo and Poyser[2008] ACTA 12, (Austl)
• Corbo and Poyser had friended each other
• Birth dates and email addresses matched known information
• Accounts active
• Service allowed
Serving Documents Using Social Media
AKO Capital LLP & Another v TFS Derivatives & Others (2012) (UK High Court) Unreported
• The Facebook account did indeed belong to Mr. De Biase
• Mr. De Biase regularly accessed such account, as recent friend requests were being accepted.
Admissibility of Internet Media
Generally, official websites are more reliable
Official websites of well-known orgs (i.e. SCC) can provide reliable and admissible information
Reliability depends on:
• Careful assessment of sources• Independent corroboration • Whether the site has been modified from what was originally available
• Objectivity of the person/organization placing the information online
ITV Technologies v. WIC Television Ltd. (2003)
The internet is an abundant source of information. Some of the information available is impeccably accurate, while other information is pure garbage. It does not make sense, on the one hand, to conclude that any and all information pulled from the world-wide web is inherently unreliable and ought to be given zero weight; on the other hand, it makes equally little sense to open the door to admitting into court absolutely anything placed on the internet by anybody.
Admissibility of Internet Media
Thorpe v. Honda Canada Inc. (2010)
Whether the information comes from an official website or well-known organization.
Whether the information is capable of being verified
Whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed
Admissibility of Internet Media
Thorpe v. Honda Canada Inc. (2010)Reliability Factors:
Common sense tells us that simply because there are several million responses on Google to "Elvis is alive" or "I have been abducted by aliens" does not mean that these statements are true, either as individual observations or as collective proof of the facts. Nor do hundreds of thousands or even millions of responses to "E18 Lens Error" mean that hundreds of thousands or millions of people have experienced an E18 Error message. There is in this case no objective basis to determine that the results of the Google searches are reliable, and there is, in fact, evidence to the contrary.
Admissibility of Internet Media
The Canon Cases: Williams v. Canon Canada Inc.
Accepted for general information of non-contentious nature and where corroborative material availableRejected where evidence goes to core of dispute (e.g. immigration cases)
Rejected where evidence is not directly applicable to dispute in question
Admissibility of Wikipedia
Twitter in the Courts
RelevanceCitigroup Party Ltd. V. Weerakoon [2008] QDC 174,
1 (Austl)• Relevance defined by pleadings
• Counsel not permitted to engage in “fishing expeditions”
• Scope of discovery can be limited to prevent abuse or oppressive demands
• “Knowledge, information or belief” includes hearsay evidence.
• Questions about a party’s position on a question of law are permissible.
Scope of the Examination for Discovery
Rule 31.06(2): Names, addresses and summary of evidence (including surveillance)
Rules you should know
Scope of the Examination for Discovery
Surveillance: Beland v. Hill
Scope of the Examination for Discovery
Rule 31.06(2): Names, addresses and summary of evidence (including surveillance)
Rule 31.06(3): Findings, opinions, conclusions of experts
Rules you should know
Privilege
• Survives the litigation
Solicitor Client Privilege
• May extend over document but not the information contained within the document
• Limited to the litigation for which the document was prepared
• “Dominant purpose” test
Litigation Privilege
Waiver of Privilege
Inadvertent Disclosure
• Generally does not result in waiver. Consider:• Manner of release• Prompt attempt to
recover documents?• Timing of discovery• Timing of application• Number and nature of
third parties who learned of contents
• Will maintenance of privilege create unfairness to opposing party?
• Impact on fairness of the process of the court
Voluntary Disclosure
• Generally consitutes a waiver of privilege
• Aherne v. Chang