By Aziz Kitaka
Introduction:
With the increasing popularity of platforms like Facebook and Twitter, legal professionals are increasingly turning to these social media websites to gather relevant evidence for their cases. They can do so through the process of discovery, which is permitted by statutes and established legal precedents, enabling litigators to obtain electronically stored information from social media.
It is important to note that social media evidence is subject to the same standards as any other admissible evidence. This means that individuals who are responsible for creating or controlling a piece of evidence, such as a post, message, photo, or profile, have a legal obligation to exercise due diligence in preserving that evidence and preventing spoliation.
By adhering to these standards, the integrity of social media evidence is maintained, ensuring its reliability and authenticity in the legal proceedings. Litigators must take steps to ensure that the evidence they gather from social media platforms is properly obtained, preserved, and presented in accordance with legal requirements.
The act of deleting a post offers a false sense of security, while sanctions lie in wait. Pause, ponder, and remember that in the digital realm, actions reverberate beyond mere deletions.
The Duty to Preserve Social Media Evidence
In the vast realm of social media, where countless conversations, opinions, and interactions unfold, a critical duty emerges—the duty to preserve social media evidence. This duty demands that individuals, organizations, and even legal professionals recognize the significance of preserving social media evidence, understanding its potential impact on investigations, disputes, and the quest for truth.
When does the Duty to preserve arise?
The duty to preserve arises in two circumstances outlined below;
- When there is a pending or reasonably foreseeable litigation.
The courts generally require that a party begin preservation efforts once it knows or should know that evidence is likely to be relevant to pending or future litigation. The Florida Supreme Court in League of Women Voters of Flas. V. Detzner [172 So. 3d 363 (Fla. 2015)] highlighted that you only have a duty to preserve if there is reasonable anticipation of litigation.
In RealNetworks, Inc. v. DVD Copy Control Association, Inc.[264 F.R.D. 517, 523–24 (N.D. Cal. 2009)] it was noted that “[a]s soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action,” but that “[t]he future litigation must be ‘probable,’ which has been held to mean ‘more than a possibility’”.
The duty to preserve evidence is usually activated upon the filing of a lawsuit, but it can arise even earlier if a party becomes aware of the likelihood of future litigation. This means that if there is reasonable anticipation of legal action, parties are obligated to take appropriate measures to protect and retain potentially relevant evidence. By doing so, they can prevent the destruction, alteration, or loss of evidence that may be crucial to the case, ensuring the integrity of the legal process and the availability of all pertinent information for presentation and evaluation during litigation. In Marceau v. Int’l Bhd. of Elec. Workers [618 F. Supp. 2d 1127, 1174 (D. Ariz. 2009)], court clarified that, “the duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation”.
Similarly, in Nucor Corp. v. Bell [251 F.R.D. 191, 194 (D.S.C. 2008)], it was stated that “a party has a duty to preserve evidence during litigation and at any time ‘before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”
To sum up, the timing of when the duty to preserve evidence is triggered depends on the specific facts and circumstances of each case. In Consol. Edison Co. of N.Y., Inc. v. United States [90 Fed. Cl. 228, 256–57 (2009)], court said that “[T]he facts and circumstances of the individual case must be assessed to decide when litigation should be deemed by a court to be anticipated, either in a work product privilege dispute or in a spoliation claim.”.
2. When a written request or notice to preserve is delivered to the social media account holder
In Rimkus Consulting Group, Inc. v. Cammarata [688 F. Supp. 2d 598, 612 (S.D. Tex. 2010)], it was stated that, “generally, the duty to preserve arises when a party ‘has notice that the evidence is relevant to litigation or . . . should have known that the evidence may be relevant to future litigation.” In Re Nat’l Century Fin. Enters [Inc. Fin. Inv. Litig., No. 2:03-md-1565, 2009 WL 2169174], court stated that “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”
In Re Kmart Corp. [371 B.R.823, 842 (Bankr. N.D. Ill. 2007)], court said that
‘[A] party’s duty to preserve specific types of documents does not arise unless the party controlling the documents has notice of those documents’ relevance,’” and “[t]his notice ordinarily comes from discovery requests or from the complaint itself,” but “‘the obligation to preserve evidence may arise prior to the filing of a complaint where a party is on notice that litigation is likely to commence.
The obligation to preserve evidence can also be triggered prior to the formal initiation of a lawsuit if a party has reasonable awareness that litigation is probable. In Indem. Ins. Co. of N. Am. v. Liebert Corp.[No. 96 CIV. 6675(DC)], it was emphasized that “The obligation to preserve evidence also ‘arises prior to the filing of a complaint where a party is on notice that litigation is likely to be commenced.’”
Duration to Preserve
The duty to preserve potentially relevant evidence persists throughout the duration of the discovery process as a general rule. It is incumbent upon litigants to ensure that all discoverable information is retained.
Courts recognize that this preservation obligation extends beyond its initial triggering and requires parties to maintain the retention of relevant evidence on an ongoing basis.
Do Ugandan courts have powers to enforce the duty to preserve Social Media evidence?
Courts possess the authority to safeguard the integrity of their proceedings by imposing sanctions on parties who engage in the destruction of evidence after a legal action has commenced. However, there is currently no specific statutory provision within Ugandan Law that explicitly empowers courts to enforce the duty of litigants to preserve social media evidence. Moreover, there is limited legal precedent in this particular area. Nevertheless, it is imperative for litigants to proactively invoke the enforceability of this principle, particularly concerning the realm of social media evidence. This is because available evidence on social media platforms is susceptible to deletion by opposing parties, particularly when such evidence affects them.
In order to uphold fairness and justice, it is the duty of all courts to address and rectify instances of spoliation of social media evidence, including posts, messages, or videos, when brought to their attention. Failure to impose appropriate sanctions in such cases would undermine the promotion of justice. However, courts currently have limited legal resources at their disposal to support and substantiate their actions in this regard. Consequently, it is essential for courts to enhance their ability to justify and support their decisions pertaining to the preservation and spoliation of social media evidence. This may involve engaging in a comprehensive analysis of existing legal frameworks and precedents from other jurisdictions, which can serve as persuasive authorities. By doing so, courts can develop a more robust and justifiable basis for their actions when confronted with instances of spoliation of social media evidence.
In the absence of specific rules or statutes, courts have consistently recognized that the responsibility to preserve evidence is rooted in common law principles. They have relied upon their inherent authority to sanction parties for failing to fulfill this duty.
Ugandan courts can rely on their inherent powers to regulate pre-litigation conduct if they can identify the source of those inherent powers.
A cursory look at Section 98 of the Civil Procedure Act shows that the inherent power of court is saved in the following terms,
“Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
Under Section 33 of the Judicature Act, the High Court is vested with very wide general powers to grant remedies. It provides as follows:
“The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.“
Based on the legal arguments provided, counsel’s plea for the court to impose sanctions for the spoliation of social media evidence finds support in the court’s inherent powers to safeguard the integrity of the litigation process. When an individual deliberately destroys evidence on social media while anticipating legal proceedings, it signifies an intention to hide relevant information that could be used against them. In St. Louis v. Canada (1896) 25 SCR 649 the Supreme Court of Canada court held that when it is shown that evidence has been intentionally destroyed a rebuttable presumption of fact arises that the evidence would tell against the spoliator. This behavior undermines the principles of fairness and hinders the opposing party’s right to a fair trial. As a result, imposing sanctions in such cases is justified to preserve the integrity of the judicial system and ensure that all parties have an equal opportunity to present their case.
The purpose of Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act is to secure the ends of justice. The inherent power of the court serves the fundamental objective of ensuring justice and remedying any wrongdoing. It comes into play when there is an abuse of the court’s process, instances of fraud or misrepresentation by a party before the court, or when the circumstances of a particular case are not covered adequately by existing procedural rules. By exercising their inherent power, courts aim to maintain fairness, rectify imbalances, and address gaps in the legal framework.
Courts around the world have consistently relied on their inherent authority to impose sanctions for evidence spoliation, emphasizing their inherent power to effectively manage litigation, maintain the integrity of legal proceedings, and penalize parties involved in misconduct.
In Capellupo v. FMC Corp. [126 F.R.D. 545, 553-54 (D. Minn. 1989)], the United States District Court for the District of Minnesota imposed harsh sanctions on a party that had intentionally destroyed evidence when it had notice of potential litigation. In doing so the court “relie[d] on its inherent power to regulate litigation, preserve and protect the integrity of proceedings before it, and sanction parties for abusive practices.
In Seilvstri v. Gen. Motors Corp. [271 F.3d 583, 590 (4th Cir. 2001)], the court stated that, “We conclude . . . that a federal law of spoliation applies because . . . the power to sanction for spoliation derives from the inherent power of the court, not substantive law.”
In Chambers v. NASCO, Inc [501 U.S. 32 (1991)], it was held that “the sanctioning scheme of the statute and the rules [do not] displace the inherent power to impose sanctions for [certain] bad-faith conduct. In this case the Court authorized sanctions that punished a party for “fraud . . . perpetrated upon the court” or for “tampering with the administration of justice” in a manner that involved “a wrong against the institutions.
In Roadway Expresss, Inc. v. Piper [447 U.S. 752 (1980)], the Supreme Court reaffirmed the “‘well-acknowledged’ inherent power of a court to levy sanctions in response to abusive litigation practices.
Another justification for courts to impose sanctions for the failure to preserve social media evidence, despite the absence of specific statutory or procedural regulations, is based on the principle that courts have the authority to establish general rules of practice, procedure, and evidence in cases. Through their decisions, courts can regulate the conduct of litigation in a manner that aligns with the law and ensures fairness and efficiency in the judicial process.
Section 39 of the Judicature Act deals with the jurisdiction of the High Court in the absence of procedures.
Section 39 (2) provides:
“Where in any case no procedure is laid down for the High Court by any written law or by practice, the court may, in its discretion, adopt a procedure justifiable by the circumstances of the case.”
This rule empowers judges to establish procedures in situations where there are no existing governing laws or rules. The application of this rule was seen in Bushoborozi v. Uganda [HCT-01-CV-MC 11 of 2015) [2015] UGHCCRD 14 (10 July 2015)] Hon. Justice Batema found that even though there is no procedure provided for returning the prisoner to court for appropriate orders when the Minister has failed or ignored to issue the necessary orders, Section 39 of the Judicature Act deals with the jurisdiction of the High Court in the absence of procedures. This section empowers the court to, at its discretion, adopt a procedure justifiable by the circumstances of the case. Relying on Section 39 of the Judicature Act, Justice Batema proceeded to highlight his recommended procedure in his judgment.
After suggesting the suitable procedure, the Learned Justice further stated:
The Deputy Registrar sitting at Fort Portal is hereby directed to serve a copy of my ruling to the Rules Committee and the Principal Judge with a view of prompting the development of some rules and or Practice Directions along what I have recommended in this ruling.
It follows, therefore, that even though the current legal framework in Uganda may not explicitly address social media evidence preservation and associated sanctions for non-compliance, courts can utilize litigation to enforce this practice. By doing so, courts can effectively regulate the practice and procedure concerning social media evidence preservation, thus filling the gap in the legal regime in Uganda.
The power to regulate court procedures falls within the purview of the “judicial power.” In order to effectively carry out their judicial functions, courts require the accurate and comprehensive presentation of relevant evidence. Therefore, it can be argued that the “judicial power” encompasses the authority to ensure that, when a case is brought before the court, all the necessary facts are accessible, enabling the court to arrive at a fair and just resolution.
In order to ensure the just resolution of cases and the effective functioning of the courts, the preservation of evidence holds paramount importance. Recognizing the crucial role of social media in modern communication and its potential as evidence, it becomes imperative for courts to acknowledge the practice of issuing social media evidence preservation letters and embrace the principle of social media evidence preservation, despite the absence of a specific legal framework.
By doing so, courts can actively respond to the evolving digital landscape and foster a legal environment that upholds the integrity of evidence, empowers the pursuit of truth, and ultimately facilitates fair and equitable outcomes in legal proceedings.
ISSUANCE OF A NOTICE TO PRESERVE SOCIAL MEDIA EVIDENCE
Litigants who suspect that an opposing party’s social media content will be relevant to the case and necessary for discovery should send out a preservation letter to the opposing party. The preservation letter plays a pivotal role in substantiating a claim for spoliation, acting as a crucial element in establishing bad faith and a deliberate disregard for the duty to preserve pertinent evidence. When issuing a notice to preserve or preservation letter, it becomes paramount to safeguard potentially relevant social media information from any alteration, deletion, or destruction. The primary objective is to prevent the spoliation of social media evidence, which refers to the intentional or unintentional act of tampering with or modifying evidence.
Can a litigant argue that the information on the social media platform is private in response to a preservation letter?
When an individual willingly discloses information to the public, such as through social media platforms, they relinquish their reasonable expectation of privacy for that particular information. This means that if a litigant argues that the information on a social media platform is private in response to a preservation letter, the court may consider whether the individual’s expectation of privacy is valid based on the voluntary nature of their disclosure. In the context of social media, public communications encompass any information that is accessible to the general public. Specifically on platforms like Facebook, public communications refer to profiles or portions of profiles that can be viewed by any Facebook user or individuals on the Internet at large. This broad definition highlights that content deemed public on social media platforms is not subject to the same expectation of privacy as information intended for private or limited audiences. In Yath v. Fairview Clinics [N.P., 767 N.W.2d 34], the court ruled that the information posted by users on social media platforms is considered public information. This means that individuals who choose to share content on social media platforms do not have a reasonable expectation of privacy for that information. The court’s decision emphasized that when users voluntarily disclose information on social media, it becomes accessible to the general public and can be treated as public information in legal proceedings.
Failure to adhere to a preservation letter can have serious consequences, as it may result in spoliation claims and subsequent sanctions from the court. Spoliation refers to the intentional or unintentional destruction, alteration, or failure to preserve relevant evidence. When a party fails to comply with a preservation letter, it can be seen as a disregard for the duty to safeguard crucial evidence. As a result, the court may impose sanctions to address the harm caused by the loss or alteration of evidence and to deter such behavior in the future.
SPOLIATION OF SOCIAL MEDIA EVIDENCE
Spoliation is the deliberate act of tampering with evidence, involving actions intended to alter, conceal, falsify, or destroy evidence with the purpose of interfering with a legal investigation or proceeding. The doctrine of spoliation of evidence establishes the responsibility of a party to preserve evidence when they are aware, or should be aware, that the evidence is likely to be relevant to ongoing or future litigation.
In the influential case of McDougall v. Black & Decker Canada Inc.[2008 ABCA 353], the court defined spoliation as the intentional destruction of pertinent evidence in the presence of existing or pending litigation. The Court of Appeal of Alberta in relation to the law on spoliation of evidence stated thus,
“The problem of lost or destroyed evidence is not new to litigation. In Rome, where businessmen were obliged to keep a written record of their affairs for a particular period of time, the maxim omnia praesumuntur contra spoliatorem (all things are presumed against the wrongdoer) was applied with much harshness and a claimant could be denied his claim, or found to have committed fraud, if he did not produce the documents when required. This maxim has been applied by the courts ever since, even in common law jurisdictions, although its strict application has moderated considerably over time. Thus, in England it now takes the form of a presumption that if evidence relevant to litigation has been intentionally destroyed a strong presumption arises that the evidence would not assist the party responsible for its loss or destruction (spoliator) (see: The Ophelia, [1916] 2 A.C. 206, 32 T.L.R. 502 (P.C.)). Some American courts have been more aggressive. American jurisprudence is replete with examples of courts granting a variety of remedies where evidence has been lost or destroyed – such as striking the claim, or disallowing expert reports (either before or during trial), in order to ensure a level playing field. The courts in some states have gone so far as to find that spoliation is an actionable tort. Canadian courts have followed a fairly conservative path, consistent with the one applied by the English courts. The leading case is the decision of the Supreme Court of Canada in St. Louis in which the court held that when it is shown that evidence has been intentionally destroyed a rebuttable presumption of fact arises that the evidence would tell against the spoliator.“
When it comes to social media evidence, spoliation can occur through various means. These include deleting posts, comments, messages, or profile information; removing published photos or videos; retroactively altering or deleting content that was created or shared on an account; and deactivating an account without properly preserving it, with the intent to obstruct access to information.
Is a de-activated social media account lost forever?
Social media evidence can be recovered where parties have deactivated their social media presence. In Nemchin v. Green [2017 ONSC 1403], where the defendant’s counsel discovered a deactivated Facebook page, and requested that the social media accounts be “instated and preserved immediately.” The Facebook page was subsequently re-activated for a period of time to allow the defendant’s counsel to review the data and preserve it onto a CD disk.
Because of the fact that de-activated social media accounts can be recovered, courts have been seen declining to impose sanctions based on spoliation of evidence through social media account deactivation. In Brown v. SSA Atl., LLC[CV419-303 (S.D. Ga. Mar. 15, 2021)], The defendant initiated a motion for sanctions for “alleged spoliation of electronically stored evidence, specifically his social media accounts.” The court denied the spoliation motion ruling based on the lack of evidence that the Facebook information had been “irretrievably lost.” Instead of sanctions, the court directed the production of the Facebook accounts as an alternative remedy.
However, there are instances where a deleted social media account is lost forever and can’t be recovered. If a user decides to permanently delete their account, there is a grace period of days before the account is scheduled for deletion. During this grace period, the account is deactivated and can be restored by logging back in. If the user does not log in during this grace period, the account and all associated data will be permanently deleted and therefore unable to be recovered.
In the case of Gatto v. United Air Lines[Civil Action No.: 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013)], the plaintiff, Gatto, was sanctioned for deleting his Facebook account during the litigation, which was considered spoliation of evidence. Gatto, a baggage handler, claimed to have suffered serious injuries while working at JFK Airport and provided access to all his social media and online accounts except for his Facebook account. After signing an authorization during a pretrial conference, the defendant accessed Gatto’s Facebook account which resulted into Gatto encountering alerts indicating unfamiliar computer access on his end. Because of this, Gatto then deactivated the account, citing concerns about hacking. However, due to Facebook’s policy, the account had been automatically deleted after fourteen days of deactivation. The U.S. District Court found that Gatto’s actions were not fraudulent or intended to cause delays but imposed an “adverse inference” jury instruction as a sanction during the trial. This allowed the jury to interpret the unavailability of Facebook evidence negatively.
Test for spoliation of social media evidence
The test for spoliation was outlined in Nova Growth Corp. et al v. Andrzej Roman Kepinski et al,[2014 ONSC 2763] where it was stated as “[requiring] four elements to be established on a balance of probabilities, namely:
- The missing evidence must be relevant;
- The missing evidence must have been destroyed intentionally;
- At the time of destruction, litigation must have been ongoing or contemplated; and
- It must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.
Consequences of spoliation of social media evidence
Engaging in actions such as removing, hiding, or deleting social media content to prevent its presentation in court can have severe consequences. The “Spoliation Doctrine” empowers courts to impose sanctions and remedies in response to evidence spoliation. When social media evidence is intentionally tampered with, courts have the authority to apply sanctions as a repercussion for such conduct.
In Lester vs. Allied Concrete Co. [2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. 2011 Sept. 6, 2011)], Lester and his wife, Jessica, were involved in a tragic car accident when a truck owned by Allied Concrete Co. lost control and overturned onto their vehicle. Sadly, Jessica later succumbed to her injuries. The driver of the truck pleaded guilty to manslaughter. Approximately a year later, Lester filed a civil lawsuit against Allied Concrete Co. on behalf of himself and Jessica’s parents, seeking compensation for both financial and non-financial losses resulting from his wife’s death. During the legal proceedings, Allied Concrete’s attorney engaged in communication with Lester through Facebook messages. Subsequently, the attorney issued a discovery request to obtain access to Lester’s Facebook page, including photos, statuses, and messages. Upon receiving notification of the discovery request, Lester’s attorney advised him to “clean up” his Facebook page and remove certain photos that could potentially harm his case during trial. In compliance with the instruction, Lester deleted 16 photos from his profile. Later on, he deactivated his Facebook account entirely and claimed in court that he did not have an active Facebook profile. The opposing party, Allied Concrete, became aware of this action and filed a motion to compel discovery. Even after Lester reactivated his Facebook profile, the 16 deleted photos remained permanently removed (although they were ultimately presented as evidence during the litigation process).
The court ruled in favor of the defendant, imposing sanctions against both Lester and his attorney for their misconduct of spoliation of evidence. The jury was given an adverse-inference instruction, which allowed them to infer that the content deleted from Lester’s Facebook page would have been detrimental to his case.
Furthermore, the court found Lester and his attorney to be in violation of Rule 3.4(a) of the Virginia Rules of Professional Conduct for their attempts to destroy or conceal evidence that had been specifically requested by the defendant. The evidence in question, of course, pertained to Lester’s personal Facebook profile and the photos he had published. As a result, Lester and his attorney were instructed to pay $722,000 in expenses and attorney fees to the defendant. Additionally, Lester’s attorney faced a subsequent five-year suspension from practicing law due to their involvement in instructing Lester to obstruct Allied Concrete’s access to the evidence.
Criminal Sanctions
Spoliation of social media evidence can attract criminal sanctions. Under Ugandan Criminal law, Section 102 of the Penal Code Act provides for the offence of destroying relevant court evidence. It highlights that any person who, knowing that any book, document or thing of any kind is or may be required in evidence in a judicial proceeding, removes or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, commits an offence and is liable to imprisonment for a term not exceeding seven years.
METHODS OF SOCIAL MEDIA EVIDENCE PRESERVATION
It is crucial to recognize the significance of preserving social media evidence for future reference or legal proceedings. This brief guide explores various methods of social media evidence preservation. By understanding and employing these methods, individuals and professionals can ensure the preservation of valuable social media evidence for future reference or legal proceedings.
Capture a screenshot
A better method of preserving social media evidence is to preserve a screenshot or screen capture.
On Phone
Preserving social media evidence through screenshots or screen captures is indeed a common and effective method. Here’s a brief guide on how to capture screenshots on Android and iOS devices:
Android
- Navigate to the content you want to capture on your Android device.
- Locate the physical buttons used for capturing screenshots. On most Android devices, it’s a combination of the power button and volume down button, which needs to be pressed simultaneously.
- Press and hold the power button and volume down button simultaneously until the screen flashes or a capture animation appears.
- A notification or a thumbnail preview of the captured screenshot will typically appear. You can tap on it to access the screenshot and save it to your device or share it as needed.
- To view your saved screenshots, you can go to the Gallery app or any file manager app and look for a folder named “Screenshots” or a similar name.
iOS
- Go to the content you want to capture on your iOS device.
- Locate the physical buttons used for capturing screenshots. On most iPhones, it’s a combination of the side (or sleep/wake) button and the volume up button. On iPads with Face ID is a combination of the top button and the volume up button. On iPads with a home button, it’s a combination of the top (or side) button and the home button.
- Press and release the required buttons simultaneously. Be careful not to hold them for too long, as it might trigger other actions like powering off the device.
- The screen will flash briefly, accompanied by a camera shutter sound (if enabled), indicating that the screenshot has been captured.
5. A thumbnail preview of the screenshot will appear in the bottom-left corner of the screen. Tapping on it will allow you to access and edit the screenshot.
6. You can save the screenshot to your Photos app or share it directly from the preview screen. The screenshot will also be saved in the Screenshots album in the Photos app.
It is important to note that preserving social media evidence solely through screenshots may not capture dynamic elements such as videos, animations, or interactive features. In such cases, alternative methods like screen recording or utilizing specialized third-party tools may be necessary. Additionally, to maintain the integrity of the evidence, it is crucial to ensure that the screenshots are not edited or tampered with before presenting them.
On a desktop computer
Both Windows and Mac operating systems offer built-in tools for capturing and saving screenshots. The simplest method is using the “Print Screen” (or “PrtScn”) key on your keyboard. Depending on your system, you may need to use additional key combinations like “Alt + Print Screen,” “Fn + Print Screen,” or “Windows key + Print Screen” to capture the entire screen or a specific part of it.
Once you press the appropriate key combination, the screen may briefly flicker or appear unchanged. However, the screenshot is now saved to your computer’s clipboard, ready to be pasted into another application such as Microsoft Paint or a Word document.
In some cases, your screenshots may be automatically saved by default. For example, Microsoft’s OneDrive may save screenshots to your OneDrive Pictures folder under the “Screenshots” subfolder. Similarly, cloud-based services like Dropbox may also save a copy of your screenshots.
If you only want to save a portion of the screenshot, you can paste the entire image into an application and then edit it to include only the relevant section. When selecting or cropping, consider preserving important elements such as the webpage address and the time and date displayed by your computer (often in the lower right-hand corner). Finally, save the edited image as a JPG, PNG, or BMP file.
Remember to maintain the integrity of the captured evidence by ensuring that the screenshots are not modified or manipulated before presenting them as evidence.
Software and tools built to preserve
While saving a screenshot preserves what you see, screenshots lack the behind-the-scenes information (called metadata) that’s embedded into the webpage or post. In addition, the foundational requirements of how, when and where the evidence was collected relies heavily on you (the collector of the evidence) to maintain the process and chain of custody.
Alternatively, consider utilizing software built specifically for collecting and preserving online and social media content. These tools log the accurate visual representation of the content as well as all available metadata such as date, time, location, poster’s IP address and browser used. All content can be digitally signed and time-stamped in satisfaction of the legal requirements for submitting digital content as evidence.
Importantly, this type of data collection software monitors social media sources on its own.
Among the top software tools that can be used to preserve social media evidence includes;
Page Freezer
Page Freezer offers social media evidence preservation as part of its web archiving and compliance solution. Social media platforms have become an essential part of communication for businesses, organizations, and individuals. However, the dynamic and ever-changing nature of social media content can pose challenges when it comes to preserving it as evidence for legal, compliance, or regulatory purposes. Page Freezer addresses this challenge by capturing and archiving social media content from platforms such as Facebook, Twitter, LinkedIn, Instagram, and more. It utilizes web crawling technology to regularly capture and store the content in a tamper-proof format, ensuring its authenticity and integrity.
Here’s how Page Freezer’s social media evidence preservation works.
- Capture
Page Freezer automatically captures and archives social media content from various platforms. This includes posts, comments, messages, profiles, images, and other relevant content.
- Compliance
The archived social media content is stored securely, meeting regulatory requirements for record-keeping and compliance purposes. This ensures that organizations have a complete and accurate record of their social media communications.
- Preservation
The archived social media content is preserved in its original form, including metadata, timestamps, and any associated media. This ensures the integrity and authenticity of the evidence.
- Search and Retrieval
Page Freezer provides advanced search and retrieval functionalities, allowing users to search for specific social media content based on keywords, dates, or other criteria. This makes it easier to locate and access relevant evidence when needed.
- Export and Presentation
Page Freezer allows users to export the archived social media content in various formats, such as PDF or HTML. This enables organizations to present the evidence in a user-friendly and legally admissible manner.
By offering social media evidence preservation, Page Freezer helps organizations address the unique challenges associated with preserving social media content for compliance, legal, and regulatory purposes. It ensures that organizations have a complete and defensible record of their social media activities, allowing them to meet their legal obligations and effectively manage potential risks.
WebPreserver
WebPreserver is a powerful digital evidence capture tool specifically designed to preserve social media evidence. Its comprehensive features and functionalities make it an ideal solution for capturing, archiving, and securely storing social media content for legal purposes.
Here’s a brief overview of how WebPreserver can preserve social media evidence.
- Capture Social Media Profiles
WebPreserver supports the archiving of various social media platforms, including Facebook, Twitter, LinkedIn, Instagram, and more. It allows users to capture complete profiles, including user information, posts, comments, images, videos, and other media.
- Accurate Webpage Capture
When capturing social media evidence, WebPreserver ensures the accurate preservation of webpages. It captures not only the visible content but also important metadata such as timestamps, source URLs, and user interactions. This comprehensive capture ensures a faithful representation of the original content.
- Forensic Integrity
WebPreserver focuses on maintaining the forensic integrity of the captured evidence. It employs robust mechanisms to securely preserve and protect the evidence against tampering or unauthorized modifications. Digital signatures and verification features are available to establish the authenticity and integrity of the captured content.
- Metadata Preservation
Social media evidence often relies on metadata to establish context and credibility. WebPreserver ensures that metadata, such as dates, times, and user details, are accurately captured and preserved alongside the captured content. This metadata strengthens the evidentiary value of the preserved social media evidence.
- Secure Storage and Access Control
WebPreserver offers secure storage options for preserving social media evidence. Users can store the captured content locally or in cloud-based repositories, which provide robust access controls, encryption, and backup mechanisms. This ensures the integrity, confidentiality, and availability of the preserved evidence.
- Collaboration and Reporting
WebPreserver facilitates collaboration among legal teams working on social media evidence. It allows users to share and collaborate on captured evidence, enabling streamlined workflows and efficient case management. The tool also provides reporting features to generate comprehensive reports for legal proceedings.
X1 Social Discovery
X1 Social Discovery is a digital investigation software designed to collect, search, and analyze social media and web content for legal and regulatory purposes. It helps organizations preserve and analyze social media evidence for use in litigation, investigations, and compliance matters.
Here’s an overview of the process involved in social media evidence preservation using X1 Social Discovery.
- Collection
X1 Social Discovery allows you to collect social media data from various sources, including popular platforms like Facebook, Twitter, LinkedIn, Instagram, and more. The software employs APIs and other methods to securely and legally access the data.
- Preservation
Once the data is collected, X1 Social Discovery preserves it in a forensically sound manner to ensure its integrity and authenticity. It captures the original content, metadata, and other relevant information associated with each social media post or communication.
- Filtering and Searching
X1 Social Discovery provides advanced filtering and searching capabilities to help you quickly identify relevant information within the collected data. You can apply various filters based on keywords, dates, user profiles, and other criteria to narrow down the dataset.
- Comprehensive Reporting
Page Vault generates comprehensive reports that document the capture process, including details such as capture date and time, user information, and the preserved content itself. These reports can be used as evidence or documentation for legal or compliance purposes.
- Collaboration and Sharing
Page Vault enables users to collaborate and share captured social media content securely with other parties. This feature is particularly useful for legal teams, investigators, and compliance officers who need to share and review preserved content with colleagues or external stakeholders.
CONCLUSION
The realm of social media evidence preservation in Uganda is in a state of constant evolution, requiring substantial transformation driven by the combined influences of judicial and litigation activism. These two key factors play pivotal roles in shaping the practices and legal principles governing this domain.
Judicial activism, stemming from the judges who oversee cases involving social media evidence, can play a critical role in establishing guidelines and standards for the preservation of such evidence. These judicial actions serve to define how social media evidence should be handled and preserved within the context of legal proceedings.
On the other hand, litigation activism, led by legal advocates and litigators, focuses on advocating for reforms and promoting greater awareness regarding the significance of digital evidence and its preservation. This collaborative effort between the judiciary and legal advocates becomes increasingly crucial as technology continues to advance and the legal landscape undergoes transformation.
By Aziz Kitaka
DOWNLOAD PDF USING THE FOLLOWING LINK: https://docdro.id/aDgHcIg
Social Media Law Uganda Social Media Evidence Uganda