Weilers LLP

Evidence in the Internet Age – Part 2

Evidence in the Internet Age – Part 2

October 16, 2023

By Brian Babcock

The internet is an ocean of information. Some of it is even correct.

The paramount rule governing the admissibility of evidence is reliability and necessity.

The best evidence is a document or firsthand evidence of a witness. Not all documents are admitted into evidence. Unless the parties agree otherwise, documents, to be proof of their contents, must be admitted through a witness familiar with them or fit into an exception. In addition to reliability and necessity, there are well-established exceptions for business records, public records, and the like. However, these rules are very technical. If you want the most effective results, you should consult a lawyer.

Historically, courts did not admit secondhand evidence or hearsay. This is because the best way to test reliability is cross-examination of a firsthand witness.

The principled approach now taken as to reliability is the most important exception that allows hearsay to be admitted.

But first, you need to prove necessity.  With video evidence now common, not calling the best witness is not acceptable. In a recent Ontario Court of Appeal decision, the Court rejected the evidence of a live witness with secondhand knowledge as to corporate intent because there was no explanation why the sole directing mind of the corporation was not called, noting he could have testified by video. So, the requirement of the “best evidence” is still very much the law.

Generally, courts are suspicious of most evidence downloaded off the internet because it is often impossible to test the reliability of the documents without the author being present.

But because the internet is part of everyday life, information from there might be admissible in some situations, such as:

  • To explain the information upon which you, or another witness, acted. In this situation, the Court is not relying upon the truth of the document.
  • As illustrations to complement oral evidence, here, we think about someone trying to prove the damage to property. A witness who can say, “It was similar to this one advertised on the internet for $400.00” is effective because the opposing party, or their lawyer, can cross-examine the witness to test the reliability.
  • Facebook or social media posts, not for their truth, but to cross-examine the author.
  • Public documents found on the internet, such as official weather records.

Some judges, in some situations, will allow a broader scope of internet-based evidence. Generally, however, courts are unlikely to admit:

  • A Wikipedia page- they are often not reliable.
  • A medical explanation, unless from a reliable source
  • Other facts or opinions that should be proven through an expert.
  • Other documents which contain more assertions or opinions than facts.

Of course, it always depends on what you are trying to prove – if you claim you were defamed on the internet, the article will be admitted, proving that it was published, not for the truth of the contents.

We have barely scratched the surface of the problems of proof through internet evidence. Whether you are representing yourself or discussing evidence with your lawyer, we hope that this short primer has helped you understand why just because something is on the internet does not make it evidence.

This is as true for Small Claims Court as for the Superior Court. Although evidence is more liberally admitted in Small Claims Court, with the limit raised to $35,000.00, judges are more careful about what they rely upon.

Evidence is a tricky subject, and the takeaway from this article, we hope, is to encourage you to obtain legal advice. Lawyers, such as the litigation team at Weilers LLP, have training and experience in the rules of evidence. Even if you plan to represent yourself, some coaching or assistance is more than worth the cost.