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“Your Honour, according to Wikipedia…” Court Perspectives on Internet Media.

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Presentation on theme: "“Your Honour, according to Wikipedia…” Court Perspectives on Internet Media."— Presentation transcript:

1 “Your Honour, according to Wikipedia…” Court Perspectives on Internet Media

2 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.

3 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 addresses matched known information Accounts active Service allowed

4 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.

5 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)

6 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)

7 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:

8 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.

9 Accepted for general information of non-contentious nature and where corroborative material available Rejected 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

10 Twitter in the Courts

11 Relevance Citigroup 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.

12 Scope of the Examination for Discovery Rule 31.06(2): Names, addresses and summary of evidence (including surveillance) Rules you should know

13 Scope of the Examination for Discovery Surveillance: Beland v. Hill

14 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

15 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

16 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

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