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Your Posts Can Be Your Undoing
While it is said that “What happens in Vegas, stays in Vegas,” what happens on social media stays on social media forever. More and more, people are discovering that what they post on Facebook, Twitter and other social media sites can have serious consequences when it comes to criminal prosecutions. Whether it is cyberbullying, as I discussed here, or alleged threats taken wildly out of context as in this story I recently posted about, words and pictures posted online are increasingly being used as the basis for charges by Crown prosecutors or gathered and used by the police as evidence to obtain convictions.
Over the past decade, it has become standard operating procedure for police and law enforcement agencies to search for and use social media evidence in criminal proceedings. Online photos and statements that meet the same standards for admissibility and authentication as other evidence can be damning in a wide variety of cases, from domestic violence to impaired driving to white collar crime.
Posts Can Be Used As Evidence for Later Crimes or Those Previously Committed
Most of the time, posts are used as evidence against people who are subsequently charged; for example, a picture of someone drinking at a bar the evening they are later arrested for impaired driving. In such situations, the post seems harmless or not particularly noteworthy at the time only to become devastating in retrospect.
Sometimes, such posts come from the defendant while other times they may come from a friend’s page or the account of a total stranger. Furthermore, everyone with a smartphone can take pictures of events as they happen and upload them to social media sites. After the 2011 Stanley Cup riots in Vancouver, so-called “Facebook vigilantes” uploaded thousands of photos and other information to identify and track down those responsible for the violence and destruction.
Of course, there are also those who convict themselves as a result of their obliviousness and zeal to post their exploits online, like the Texas bank tellers and their friends who brilliantly posted “I’M RICH!!” on Facebook shortly after their branch was robbed.
Privacy Settings and Deletions Won’t Save You
Incriminating social media evidence is often readily accessible and can be seen by law enforcement with just a quick search; a Facebook page with limited privacy settings, a YouTube video, or a tweet.
But privacy settings and hasty morning-after deletions of ill-advised posts will not stand in the way of the authorities’ relatively easy path to obtaining evidence from the social media sites themselves. It is common and routine practice for Canadian law enforcement to obtain the court orders, subpoenas, or search warrants necessary to obtain subscriber information, history, and content from social media networks located in the U.S. such as Facebook. It is even easier to obtain that information from Canadian sites or providers; Canada’s privacy legislation, the Personal Information and Electronic Documents Act (PIPEDA) allows Canadian companies to voluntarily release user information and content to authorities without a warrant or order of any kind. If the police ask, they shall receive.
Be Careful Out There
While no one has a crystal ball and can see for sure how a wayward comment or picture may lead to a jail sentence, and while a good defence lawyer may be able to minimize the impact of or exclude such evidence, the availability of everything posted on social media sites to police and prosecutors should at least give users pause before they hit “Enter.”
The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of law familiar to our firm lawyers. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website as such.
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