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Preserving evidence of internet publication


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  • There’s no secret that internet abuse in one form or another is a great source of work for usShow of handsWho has had a file of any kind that’s involved what someone has said online in the last 12 months?So let’s talk about the evidence issuesObjective is to leave you with an understanding of the issues so you can give better guidance to clients about preservationMy structure Who What When How
  • Pop Quiz – Who can identify the rule of professional conduct lawyers as witnesses?Answer – 4.02 (conflict between duty to court and duty to client)Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted. A lawyer who is a witness in proceedings shall not appear as advocate in any appeal from the decision in those proceedings. Confess to having Vanessa preserve as a matter of necessity. Is that our business?Best practice – client subject to our written adviceOption – online investigation professionals
  • KJB and I witnessed first handHC notified us – alert servicesPulled it upLoaded it on another machine and it was gone 10 minutes laterShows how fast it can changeOur clients cannot afford to wait and once we’re engaged we need to protect ourselves from an allegation we ought to have given preservation adviceDEMONSTRATE GOOGLE ALERTS….Periodically-duration of publication is often a relevant fact-need a schedule that will allow a safe inference of continuous publication-you can use a change identification service-DEMONSTRATE CHANGE SERVICE-might be an aid to the preservation of evidence but is not good evidence itself (hearsay like)
  • Had to include some case lawThis is a classic statement on the defamatory meaning testNot one but two indications that context matters All the circumstances must be considered Context in which the words are usedThe point is – determining the meaning of words is a subtle exercise of looking at words in the full contextThis affects the preservation processLet me illustrate
  • Defamatory?Not on its faceThe word “do” is underlined to indicate this it is a hyperlinkWhat if the word “do” links to…
  • Et voila! Defamation. [MATTHEW SCOTT]So the evidence is contained on two separate pagesThe evidence is also contained in “meta data” – the hyperlink between the two pages that can’t be seenCrookes v. Newton was about whether a neutral hyperlink to a freestanding defamatory publication is, on its own, a publicationSCC said noCrookes v. Newton does not mean a hyperlink can’t be part of a defamatory publicationSo clients better capture the two pagesAnd better capture hyperlinks between the two pagesThere will always be a scope of preservation issue – single page? multiple page? website? – it’s our role to advise on scope
  • Hard not to mention this when talking about contextNot defamatory in the context of an internet dialog (novel decision on a question of law that is apparently under appeal)The dialog occurred over two separate websitesIf you capture the comment on one site do you have a duty to capture the other sites because they are part of the factual context?Will you be driven from the judgement seat because you have not and the content is gone?The point. Preservation is not easy. Clients need our advice.
  • The best evidence concept can’t really applyYou’re looking at a rendering of a thing that exits at a point in time from a particular user’s viewSHOW FACEBOOK PAGEYou’re really copying the renderingGenerally, do so in a manner that accurately represents what’s published to the worldRemember our hyperlink scenario -paper – with a manually recorded note -or a reliable tool like Adobe PDF that embeds the link -or video-there are automated “solutions” but authentication is may be challenging if authentication rests on an automated process that needs to be proved
  • Transcript

    • 1. Preserving Evidence of InternetPublicationDan Michaluk
    • 2. Preserving Evidence of Internet Publication• Who? • No – You, your admin • Good – Our client (responsible manager) • Better – Our client (internal security) • Best – Online investigation pros (they exist)Type the Presentation Name Here (in master view)
    • 3. Preserving Evidence of Internet Publication• When? • Immediately • Use alert services • It can be gone in 10 minutes • Periodically • Duration is usually relevant • Don’t rely on page change identification servicesType the Presentation Name Here (in master view)
    • 4. Preserving Evidence of Internet Publication• What? Defamatory meaning in the words may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” Botiuk v. Toronto Free Press Publications Ltd. (SCC)Type the Presentation Name Here (in master view)
    • 5. Preserving Evidence of Internet Publication• What? John Smith knows what to do to succeed at in business.Type the Presentation Name Here (in master view)
    • 6. Preserving Evidence of Internet Publication• What? PHOTO OF MAN KISSING BOSS’S BEHIND REMOVED FROM THIS VERSION DUE TO LICENSING CONCERNSType the Presentation Name Here (in master view)
    • 7. Preserving Evidence of Internet Publication• What? Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond... This distinguishes the context of blogging from other forms of publication of defamatory statements. Baglow v. Smith (Annis J. of SCJ in 2011)Type the Presentation Name Here (in master view)
    • 8. Preserving Evidence of Internet Publication• How? • Print, PDF, video or whatever, provided… • …you can readily prove it is authentic • …it reasonably represents “the” publication • …it captures evidence about time and links • …its price is proportionate to what’s at stake • You will usually need to create a physical log of activityType the Presentation Name Here (in master view)
    • 9. Preserving Evidence of Internet Publication• Next time Finding and Preserving Text Messages m/ (>_<) m/Type the Presentation Name Here (in master view)
    • 10. Preserving Evidence of InternetPublicationDan Michaluk