Online content does not always stay online

Nowadays, many people, particularly young people, live their lives on the internet. However, what some people tend to overlook is that not everything they do on the internet will remain there. A private DM, a screenshot, a heated comment, or a TikTok video can be used against them in a court of law if used as evidence in an investigation and/or a case.

Toronto-based criminal defence lawyer Sonya Shikhman, L.L.B., the founder and managing partner of Shikhman Barristers, breaks down how online content can be used as evidence in a court of law and the legal consequences that can arise.

The first distinction Shikhman notes is that being offensive, inappropriate, or embarrassing online does not automatically make it criminal. From the perspective of a criminal defence lawyer, the more critical concern would be the possibility of content being relied on as evidence of an actual offence. This could include threats, repeated unwanted communications, threatening conduct, or non-consensual distribution of intimate images.

Although Canadian law specifically addresses those forms of conduct, one must be cautious about leaping from screenshot to conclusion. With digital evidence, it must be determined who created it, the authenticity of the evidence, its completeness, the surrounding conversation and whether it’s been edited or taken out of context. Under the Canadian Evidence Act, if an electronic document is being introduced, the authenticity of the document must be established. It is crucial in this day and age because of how easy it is to alter, copy and manipulate digital content. A damaging screenshot does not determine the end of the analysis. What is more important is what it actually proves.

Photographer: Terrillo Walls

Regarding relationship disputes, allegations of harassment, threats or domestic violence, a broad range of digital content can be used as evidence. Depending on the allegations, direct messages, text messages, social media posts, comments, photographs, videos, voice notes, and repeated communications can all become relevant in a case.

For example, in a criminal harassment case, the Criminal Code precisely includes repeated direct or indirect communication with another person, as well as threatening conduct, provided the other elements of the offence are established. However, as a defence lawyer, Shikhman said she will never look at just one screenshot in isolation and conclude that it tells the entire story. She would also like to know what came before and after, who it was authored by, if the complete conversation is available, its authenticity, and if there was a court order or condition governing communication at the time. Shikhman notes that details can change the legal significance of a message, and with manipulated and AI-generated content becoming more sophisticated, questions surrounding authenticity and context are becoming more crucial.

Legal consequences surrounding online content all depend on the offence committed. No one is convicted just for simply posting something irresponsible or offensive online. The prosecution team still must prove the elements of a recognized criminal offence beyond a reasonable doubt.

Depending on the circumstances, online conduct can form the basis of charges such as uttering threats, criminal harassment or distributing intimate images without consent, which are serious Criminal Code offences. For example, a criminal harassment indictment carries a maximum of 10 years; uttering threats of death or bodily harm carries up to five years; and non-consensual distribution of an intimate image also carries up to five years as well.

Shikhman explains these are statutory maximums and not predictions of a sentence someone could receive in an individual case. The verdict depends on the offence committed, the facts, the person’s circumstances, their record, the harm caused and the applicable sentencing principles.

For young people under eighteen who are involved in a case, they are dealt with under the Youth Criminal Justice Act. The purpose of the system is to promote rehabilitation and reintegration. It does not mean there will not be any serious consequences. A minor can still face criminal proceedings, court-imposed conditions, a youth sentence and, in serious circumstances, custody. Records can remain and be available in accordance with the specific rules and time periods in the Act.

Photographer: Junaid Rahim

However, Shikhman said she would be very reluctant to tell a young person their future is permanently ruined due to one mistake because that is not the purpose of the youth justice system.

There are significant privacy protections in the Act, including restrictions on publishing the identity of a minor under the legislation. The Act also provides that once a youth sentence is concluded to no longer have an effect, under specific exceptions, the young person is not deemed to have been found guilty or convicted of the offence. Accountability matters along with rehabilitation. So, a justice system dealing with young people has to recognize both.

Shikhman’s advice to young people is that what happens online does not necessarily stay online. A message sent in anger, or a private screenshotted conversation can be used as evidence. “Something that feels temporary in the moment can become part of a police investigation or court proceeding,” said Shikhman.

Social media is not the place for resolving anger, a relationship dispute, or a serious conflict. Never threaten someone, repeatedly contact someone in a circumstance where the communication could become harassment, or distribute an intimate image without consent. If one is subjected to a court order or a release condition restricting communication, they need to take it seriously. Failing to comply with a release order can constitute an offence.

If there is already a police investigation or criminal allegation, Shikhman advises young people that posting their side of the story online will not help them. The best thing to do is exercise restraint, understand their rights, and get proper legal advice before creating more evidence they may have to provide an explanation for later on.

The internet and justice system are two distinct environments. While the internet encourages an immediate reaction, the justice system examines evidence after the fact.