For the uninitiated, these sites do much what a “social networking site” says it will do. They provide a means to connect with people, principally friends on Facebook and celebrities or people worth “following” on Twitter. As a general rule, being “friends” on Facebook is by mutual agreement, whilst “following” on Twitter is a one-way process, although people often do follow one another. These sites have been on an unstoppable rise over the last 10 years. Although Facebook policy requires you to know the person you wish to add as a friend, there are no stringent measures to enforce this. The average Facebook user (there are 800 million worldwide) has 130 “friends” although many—and especially those whose Facebook is used as evidence against them—will have significantly more.
Advocates and judges, from my observation, have not fully understood these concepts. I have seen counsel submit, and the judge accept, that being “friends” on Facebook is evidence of an association between two or more individuals. That is not necessarily the case. Despite the Facebook policy mentioned above, it is not required that you know your “friend”, much less to associate with them regularly.
There are several factors that show that evidence from a social networking site cannot be deemed to be reliable. First, it would be a simple task to create a fake Facebook or Twitter account for an individual. There are no checks on identity; all you would need would be an e-mail address (which could again easily be created and named to match the fake account) and a photo of the individual. Considering the wealth of information already available on most people as a result of Facebook, the photo would hardly be troublesome to acquire. From there, all that would be required is to add ‘friends’ and the desired association could be fabricated. Secondly, ‘fraping’ (the act of altering someone else’s Facebook account, usually mockingly, without their knowledge or consent) can be a source of misinformation. Finally, and admittedly a problem with most evidence, is the fact that people will falsify. Whether they lie as a joke or to garner social favour, people will do it.
On Facebook, this might lead to exaggerating a situation or even completely fabricating one. There are clearly too many ways in which evidence from social networking sites can be unreliable for the courts safely or fairly to consider it in regard to a defendant or witness’ bad character. Only if the individual concerned confirms that a social networking page is genuine can it ever be considered justly. However, a defendant is not obliged to confirm this.
Ultimately, many judges and advocates are expected and required to understand media and social tools with which they may not be familiar. The two potential solutions are expert witnesses, or a simple fact sheet. It is hard to see what would qualify an individual to be an expert witness on Facebook, even if funding these days could be found. Thus the fact sheet seems the sensible answer. With the joint collaboration of, for example, the Criminal Bar Association and the Judicial College, both judges and barristers could be provided with a concise list of important facts and explanations regarding social networking sites, as well as general descriptions of their purpose. For instance, making clear what being a “Facebook friend” might mean, or what a “tweet” is, and what can fairly be deduced and concluded from them. Social networking sites can provide valuable evidence, but such evidence should be approached with caution. In the interests of justice, it is essential that all involved in its administration are kept up to date and sharp on such developing and important matters.
Benjamin Greenstone is a history undergraduate at the University of East Anglia.