The widespread use of handheld cameras and the penchant for posting video to social media have created significant evidentiary challenges from an authentication perspective.  For example, cameras mounted on motorcycles that are driven in a highly dangerous manner occasionally result in the posting of such videos to a social media site, ostensibly for bragging rights.  Assuming the police are able to identify the driver, the video can only be used if it can be authenticated.  That means that the police will have to determine what locations are shown in the video (in order to prove jurisdiction) and when the driving occurred (since the prosecution must allege an offence date).  It must also be proven that the video has not been altered in any way that affects the integrity of the images.  Anonymity often makes these cases very difficult to prove.

Violent crime is another type of activity that is posted to social media almost daily.  When such videos are posted without any attribution of who took the video, authentication is often very challenging.  We are starting to develop a body of case law in Canada and the United States on the authentication of social media images.  Three such cases are discussed below.

Authentication of an image anonymously posted to a website was the focus in R. v. Andalib-Goortani, 2014 CarswellOnt 13171, 2014 ONSC 4690 (Ontario Superior Court of Justice).  During protests at the Toronto G20 Summit, many photos were taken of the interaction between police and protesters.  The defendant, a police officer, was charged with assault with a weapon for allegedly striking a protester with a baton.  The Crown sought to tender into evidence a single photo which purported to show a police officer, believed to be the defendant, winding up and about to strike the complainant with a baton.  The defense challenged the authenticity of the image.

The Crown called a forensic video analyst to give expert evidence as to the authenticity of the photograph.  The analyst testified that the image had been stripped of most of its metadata, likely when it was uploaded to the website.  Further, the image had been cropped from its original size.  The analyst commented at para. 11 that:

Additional information would be of assistance to further authenticate the questioned images such as an image audit trail, original recording camera/recorded media, camera operator or any witnesses to the image being taken.

While there was no evidence that the image had actually been altered in an impermissible way, the analyst also testified that she could not conclusively say that such alteration had not occurred.  A defense expert testified that the image had in fact been changed but he could not determine how much change had been effected.

The Court ruled as follows on the Crown’s application to admit the image into evidence:

30        Both Ms. Peloquin and Mr. Musters agree that some properties of the image have been altered through the process of being uploaded. However, neither could say to which site it was initially uploaded. Neither is able to discern whether the image was automatically stripped of its metadata during this process, or whether it was intentionally removed (and by whom). Nor can the experts determine how many websites and/or computers this image has been uploaded to or downloaded from.

31        I appreciate that Ms. Peloquin has more formal training than Mr. Musters in this area. However, Mr. Musters’ practical experience over the years equally qualifies him to provide an opinion on this matter. In his report and his testimony, Mr. Musters expressed more concern than Ms. Peloquin that the image had been tampered with or altered, and in more serious ways. He had the image analyzed by FOURMatch, which Ms. Peloquin did not. He refused to use so-called “freeware” (i.e., free software available from the internet) because of his concerns about its reliability, whereas Ms. Peloquin relied on at least one of these free products (“JPEGsnoop”). In the end, I am not prepared to discount the weight of Mr. Musters’ opinion in the manner that the Crown submits.

32        Some of the observed changes to the image may, at first blush, appear innocuous. However, given that the image has been changed in these ways (for reasons and by persons unknown), there is a lingering concern that it has been manipulated in other ways, ways that are intended to distort the true state of affairs that the image purports to capture. Neither expert could say that the image has not been altered in this manner. Ms. Peloquin said that it would take considerable skill for someone to alter an image and elude forensic testing. Mr. Musters suggested it would take less skill to pull off such a feat, especially with the widely available Photoshop software.

33        Materials taken from websites and offered as evidence in court must be approached with caution, especially in a case such as this where no one is prepared to step forward to say, “I took that photo and it has not been altered or changed in anyway.” Several U.S. cases warn about the possibility of tampering in this context. In People v. Beckley, 110 Cal. Rptr. 3d 362 (U.S. Cal. Ct. App. 2 Dist. 2010) , the Court expressed concern about the dangers of unauthenticated digital images at pp. 515-516:

Recent experience shows that digital photographs can be changed to produce false images …. Indeed, with the advent of computer software programs such as Adobe Photoshop “it does not always take skill, experience, or even cognizance to alter a digital photo.” (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time” (2009), 2009 J.L. Tech. & Pol’y 175, 183).

Similar concerns were expressed in St. Clair v. Johnny’s Oyster & Shrimp Inc., 76 F.Supp.2d 773 (U.S. Dist. Ct. S.D. Tex. 1999), Griffin v. Maryland [419 Md. 343 (U.S. Md. Ct. App. 2011)], 19 A. (3d) 415 and People v. Lenihan, 911 N.Y.S.2d 588 (U.S. N.Y. Sup. 2010). These common sense warnings take on special significance when eyewitness identification is critical, as it is in this case.

34        The Crown has failed to satisfy me that the image has not been tampered with or altered in some material way. For this reason alone, the image cannot be authenticated. In the circumstances, it is not necessary to addresses the other authentication criteria mentioned above.

Based on the expert evidence before the Court, it was clearly open to the Court to rule that the Crown had failed to adequately authenticate the image.  This case is helpful as it addresses the issue of authentication under the spectre of image manipulation and the important role the Court plays in excluding evidence deemed unreliable.

Authenticity of images posted to Facebook was at issue in R. v. Hirsch, 2017 SKCA 14 (Saskatchewan Court of Appeal).  The defendant posted compromising photos of the complainant together with a threat on his Facebook page.  The complainant was provided with screen shots of the defendant’s Facebook page from a friend as the complainant had been blocked from accessing the page herself.  At issue at trial was whether the Facebook images had been adequately authenticated.  The trial judge ruled that the complainant herself had adequately authenticated the Facebook page even though the friend who captured the page was not called as a witness.  On appeal, the Court of Appeal ruled that the screen capture method was adequate to establish both the authentication and the integrity of the questioned images and Facebook page.  The Court stated:

24      Of importance in this case, s. 31.3(b) provides for a presumption of integrity in the circumstances where a party has established that the electronic document the party seeks to adduce into evidence was recorded or stored by another party who is adverse in interest to the party seeking to introduce it. Although no reference was made to the Canada Evidence Act at trial, this was largely the circumstance before the trial judge. The Crown sought to introduce copies of Mr. Hirsch’s Facebook page — an electronic document recorded and stored by Mr. Hirsch — through screen captures of that electronic document. It might be suggested that, in one sense, there were actually two electronic documents at issue: the screen captures themselves and the Facebook page itself. However, the more compelling conclusion is that the screen captures are the best evidence available to the Crown to adduce Mr. Hirsch’s Facebook page itself into evidence. Indeed, given the fluidity and impermanence of postings on a Facebook page, a screen capture may be one of the few ways of establishing what was actually posted on a Facebook page at any point in time. On this basis, I am satisfied the presumption of integrity under s. 31.3(b) of the Canada Evidence Act applied in these circumstances and was not rebutted (Mr. Hirsch adduced no evidence).

This ruling is helpful as it endorses screen captures as a viable method of both recording and authenticating electronic image and message content.

The use of digital images obtained from a social media site was examined in detail in State of New York v. Price, (2017) 29 N.Y.3d 472 (Court of Appeals of New York).  As part of its case against the defendant for robbery, the State tendered a digital image, purportedly of the defendant holding a firearm, which the police obtained from the social media site BlackPlanet.com.  The detective testified that she searched the site for the defendant’s last name and found a public profile that contained several images of the defendant.  There was no reference on the page to the defendant’s full name or any other information that specifically linked the defendant to the website page.  The detective testified that while the copy of the image presented in court was a fair and accurate copy of what she observed on the website, she did not know who took the photograph, when and where it was taken or under what circumstances.  Nor did she know whether the photograph had been altered.

The issue before the Court of Appeals was whether the trial judge was correct in ruling this digital image admissible.  The Court of Appeals held that in order to authenticate a social media image, there must be evidence linking the defendant to the website or the profile.  Examples of such evidence include:

• whether the defendant used an account on the website
• whether the defendant ever communicated with anyone through such an account
• whether the account could be traced to any devices used by the defendant
• whether the account was password protected or accessible by others
• whether non-account holders could post photographs to the account
• whether the website permitted an account holder to remove photographs

While the Court of Appeals was careful to state that not all of the foregoing evidence is required, the State must demonstrate that the defendant was aware of and exercised dominion or control over the profile page.  It was insufficient to merely show that the defendant’s surname was linked to a profile page and that his picture appeared there.  The State therefore failed to demonstrate that the digital image was a fair an accurate representation of what it purported to depict.  Lacking such authentication, the image was ruled inadmissible.

Social media images represent a potential treasure trove of evidence.  Absent either the person who captured the images or someone present from the scene who can authenticate the images, admissibility may prove to be elusive.  Investigators and counsel have to address their minds to authentication early.  It would be risky to pin the success of a case on a social media image without locking down authentication.