Social media is an inherently expressive outlet that encourages users to routinely share personal information. Despite its many benefits, negligent online behaviour could be used as incriminating evidence in a legal matter. Information posted online becomes accessible to the public, and Canadian Courts have upheld relevant social media data as admissible evidence in criminal court. If you are facing a criminal charge, it is crucial to understand how your social media habits may compromise your legal proceeding.

Using Social Media Posts As Evidence

An active online presence holds the capacity to extensively document its user, making it a potentially significant influence on the criminal outcome of an accused. The law concerning social media data as evidence is constantly evolving; however, online data is admissible in court under the  Canada Evidence Act  as an “electronic document”. s. 31.8 of the Canada Evidence Act defines “electronic documents” as:

Use Of Electronic Data In Court

“data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.”

This definition encompasses most electronic communication and social media websites that are utilized today. However, the use of electronic data in court also depends on the accompanied expectation of privacy.

Text Messages & Privacy

The extent of privacy one has in the content of their text messages has recently been modified. Police officers could previously read the text messages of an accused in the event of an arrest without the attainment of a warrant on the account that one’s right to privacy is not reasonably expected once the message is sent to another person. However, in the recent case of R . v. Marakah , the Supreme Court determined that text messages may hold a reasonable expectation of privacy even after they have been sent. Examining their content without a warrant may therefore violate s.8 of the Charter, which protects the right against unreasonable search and seizure.



Despite this outcome, the court noted that the assumption of privacy varies depending on the manner of communication, and this reasonable expectation of privacy does not extend to social media postings.

Exercising Caution

It is imperative to realize the irreversibility of publishing information online, as anyone that encounters your posts can permanently record their contents.

Considering the consequences reckless online habits can have on your criminal proceeding, consider taking the following precautions:

1. Ensure the highest level of privacy is set for your social media profiles.
2. Do not post anything online that may suggest the commitment of a criminal action.
3. Do not carelessly post photos and personal information on social media. Think carefully about the content you publish.
4.  Do not discuss the content of your legal proceeding on any form of social media.
   

POSTING AN INTIMATE IMAGE OF A PERSON WITHOUT CONSENT

Social media and technology facilitate communication and access to information. It is easy through these media to connect with people all over the world, know what is happening in far and remote places and follow the news instantaneously.  This side of social media and the internet is laudable. However, there are situations where the use of social media can take a downturn and sometimes lead to criminal charges. One such nefarious use of social media is the publication of intimate images without a person’s consent.

Section 162.1 of the Criminal Code ( Cr.C. ) states at paragraph 1:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

It Is A Criminal Offence

As can be seen from this provision, it is a criminal offence to publish, distribute, sell make available or advertise and intimate image of a person without that person’s consent or being reckless as to whether that person gave their consent to that conduct. This type of situation typically occurs when let’s say a couple breaks up and one of the individuals, wanting to take their revenge, publishes online an intimate picture of the other person without the person’s consent. This section applies as well in different contexts and situations, but the situation used as an example here is probably a more common type of situation.

Level Of Scrutiny For Online Offences

The problem with publishing an intimate image without consent as well as other types of cyber crimes is that people tend to think that because the act is happening online, on the Internet, it may not have the same level of scrutiny as that of physical behaviour. But as section 162.1 Cr.C. shows, as well as other provisions of the Criminal Code , cyber behaviour is also regulated to some extent and there are more and more acts committed online that are considered criminal and, just like any other type of criminal behaviours are also punishable.

Maximum Sentence

In the case of the offence of publishing an intimate image without consent, the maximum punishment could be up to five years in prison (for an indictable offence). In addition, if a person is found guilty of the offence of publishing an intimate image without consent and is either convicted or discharged, the court may order under s. 738(1)(e) Cr.C. , in addition to any other sentence imposed, that the person pay restitution of the expenses that the victim incurred to have the intimate image removed from the Internet. In other words, not only will a person be found guilty, punished and sentenced to a possible jail term (depending on the seriousness of the situation and the background of the offender), but will also have to pay the victim for the expenses incurred by the victim to remove the image from the the online forum.

An intimate image for the purpose of the offence of publication of an intimate image without consent is defined at paragraph 2 of section 162.1 as  follows:

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

Paragraph 3

Paragraph 3 of section 162.1 provides for a defence when the publication of the intimate image serves the public good. However, whether the conduct serves the public good is a question of law and the motives of the accused are irrelevant.