Tuesday, March 3, 2015

Internet, Admissibility of Evidence

There is virtually no legislation governing the use of internet obtained materials in Court.  The Canadian Sedona principles deal mainly with production obligations and, broadly speaking, limit the burdens for preservation and production but do not prescribe admissibility of electronic information.

Broadly put, e-mails are admissible in exactly the same way as any other written communication.  There must be proof of who the author is, that the e-mail has not been tampered with, that the email is otherwise relevant and is not excluded by some other evidentiary rule, for example privilege. Instant messaging chats can also be admissible and form the basis for a finding by the Court.

Similarly, documents on internet social media pages, such as Facebook, are admissible if authorship and relevance is proven.

An employer may have a right to review the e-mails of an employee but the law is evolving.  Absent a clear computer use policy making the employee understand and agree that any materials on a work computer are available to, and may be reviewed by, the employer there may well be a right to privacyfor e-mails (and other materials) sent from work.  

Canadian courts were reluctant to recognize a common law right to privacy until January, 2012 when the Ontario Court of Appeal recognized the right to privacy in a new tort called the "inclusion upon seclusion". To obtain damages for this tort, a person must prove: (i) the actions were intentional ;(ii) the person/entity must have invaded, without lawful justification, the plaintiff's private affairs or concerns;and, (iii) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The Supreme Court of Canada in R v. Cole considered an employee's privacy rights under the Charter of Rights and Freedoms, and observed, in orbiter:

1. Canadians may reasonably expect privacy in the information contained on their work computers, at least where personal use is permitted or reasonably expected.

2. "Informational privacy" is: "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others" In this regard: "Mr. Cole's direct interest and subjective expectation of privacy in the informational content of his computer can readily be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive."

3. Mr. Cole's personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core.

4. Privacy is a matter of reasonable expectations.

5. While workplace policies and practices may diminish an individual's expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.


If an employer plans to monitor an employee's email or Internet use then ideally the employer should obtain the employee's written consent in advance via a computer-use policy. Such a policy tells the employee that the employer will be monitoring emails and Internet use and that the employee should have no expectation of privacy if she or he uses the company network to send or receive personal emails or use the Internet for personal purposes.

A somewhat more complex question is whether the meta-data related to the internet, which shows links and information about the creation of the relevant webpage, is admissible.  The answer here seems to be yes.  Meta-tags, banners and links on an Internet website are relevant in considering the nature and character of a web site.  This finding comes from a criminal case but is just as relevant for a civil matter.

R. v. Smith deals with a specially nasty obscenity case.  Here the Court of Appeal made a ruling that meta-tags, banners and links on an Internet website are relevant in considering the overall context of the site.  The Court held:


[14]       The meta-tags, banners, and links to other websites were admitted at the first trial. In Smith I, this court affirmed the trial judge's ruling on this issue, saying at para. 62:


The trial judge did not err in admitting this evidence. The meta-tags, banners and links on an Internet website are analogous to the dustcover and preface to a book: they inform the viewer about the content of the publication and provide context for the work.


[15]       The same evidence was led at the second trial, and the defence made no objection at that time. Accordingly, the trial judge did not make a formal ruling on the admission of this evidence.


[16]       On appeal, the appellant asserts that the ruling in Smith I has been overtaken by the subsequent decision of the Supreme Court of Canada in Crookes v. Newton, [2011] 3 S.C.R. 269 ("Crookes"). Based on that decision, he argues, the banners, links and meta-tags were not relevant to the content of the appellant's website and should not have been admitted.


[17]       I do not accept this submission. First, Crookes says nothing about meta-tags and banners. Second, with respect to hyperlinks, Crookes and this case are quite different. Crookes was a defamation case where the issue was whether creating a hyperlink to a third party's defamatory work is the type of act that can constitute 'publishing' that work. The court's focus was on the sufficiency of the act for the purposes of defamation; its comment, at para. 30, that "a hyperlink, by itself, is content-neutral" must be understood with that in mind. In this case, the hyperlinks were adduced only as context for the content that the appellant published on his own website.




On relevant piece of legislation is the Personal Information Protection and Electronic Documents Act ("PIPEDA")

PIPEDA sets out the ground rules for how private-sector organizations collect, use or disclose personal information in the course of commercial activities across Canada. It also applies to personal information of employees of federally-regulated works, undertakings, or businesses (organizations that are federally-regulated, such as banks, airlines, and telecommunications companies).

PIPEDA does not apply to organizations that are not engaged in commercial activity. As such, it does not generally apply to not-for-profit and charity groups, associations or political parties, for example—unless the organization is conducting a commercial activity (fundraising is not considered a commercial activity).

In addition, PIPEDA will not apply to an organization that operates wholly within a province that has legislation that has been deemed substantially similar to the PIPEDA, unless the personal information crosses provincial or national borders.  Alberta, British Columbia and Quebec have general private-sector legislation that has been deemed substantially similar. 

Therefore, PIPEDA generally applies to: 

•Private-sector organizations carrying on business in Canada in the provinces or territories of Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Saskatchewan, or Yukon but not their handling of employee information. 

•Private-sector organizations carrying on business in Canada when the personal information they collect, use or disclose crosses provincial or national borders but not their handling of  employee information. 

•Federally-regulated organizations carrying on commercial activity in Canada, such as a bank, airline, telephone or broadcasting company, etc., including their handling of health information and employee information.


So as a practical matter how can the internet be helpful in civil proceedings?

Obviously one step to take is to collect all e-mails that you or your client has access to and search them to see if there are any helpful documents – of course such must all be disclosed on discovery. More generally searching the names of parties, their phone numbers and addresses can lead to useful information.  Similarly searching possible witnesses can be helpful – this is especially true if a search of internet based report services is included – expert witnesses may have weaknesses that will come to light; sometimes unlikely information can come forward.  This author once discovered an otherwise ordinary seeming expert witness was deeply involved in racist organizations and while that was not directly relevant it was useful information for trial.  

Finally searching decisions made by the judicial officer on similar cases can be a helpful way to focus the argument.


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