How to preserve social media evidence so it still works a year later.

The framing is different enough to catch out anyone reasoning from United States practice. Section 1(1) of the Civil Evidence Act 1995 abolished the rule against hearsay in civil proceedings, and section 8 allows a statement in a document to be proved by producing the document or a copy of it, no matter how many times removed, authenticated in whatever manner the court approves. So a screenshot is not fighting for admission the way it does in a United States court.

The fight moves to weight. Section 4 sets out what the court considers when deciding how much weight hearsay deserves, including whether it would have been reasonable to produce the maker of the statement, whether the original was contemporaneous, and whether any person involved had a motive to conceal or misrepresent. An unexplained screenshot is admitted and then given very little.

On the procedural side, a document means anything in which information of any description is recorded, which plainly reaches social media and electronic communications. Disclosure in the Business and Property Courts runs under Practice Direction 57AD, in force since 1 October 2022, with PD 31B governing electronic documents elsewhere, and metadata is disclosable alongside native documents. Producing a flattened image where a native document with metadata exists is therefore a disclosure question as much as an evidential one.

Canada legislated this directly, and the wording rewards a forensic method more explicitly than any other regime here. Section 31.1 puts the burden on the person seeking to admit an electronic document to prove its authenticity by evidence capable of supporting a finding that it is what it is purported to be, which reads very close to Federal Rule 901(a).

The interesting part is section 31.2. The best evidence rule for an electronic document is satisfied on proof of the integrity of the electronic documents system in which it was recorded or stored, rather than by producing an original. Section 31.2(2) adds that a printout satisfies the rule where it has been manifestly or consistently acted on, relied on or used as a record. Section 31.3 then presumes system integrity, absent evidence to the contrary, where the system was operating properly, or the document was recorded by the opposing party, or by a third party in the usual and ordinary course of business.

Section 31.5 is the provision to know: evidence may be led about any standard, procedure, usage or practice concerning how electronic documents are recorded or stored. That is an open invitation to put the collection method itself in evidence, which is exactly what a documented, hashed, logged capture is for. Provincial evidence statutes carry closely parallel provisions.

The uniform evidence legislation removed the problem at the root. Section 51 abolished the common law original document rule, and section 48 allows the contents of a document to be proved by tendering a copy, an extract or a summary, among other routes. The Act avoids the word original altogether, which sidesteps the argument about whether a capture is an original or a duplicate.

Two presumptions then do real work. Section 146 presumes that where a document or thing was produced by a device or process that, if properly used, ordinarily produces a particular outcome, it did produce that outcome on this occasion, unless evidence sufficient to raise doubt is adduced. That is directly on point for a capture tool: show what the process ordinarily does, and the presumption carries the rest.