AUTHENTICATING SOCIAL MEDIA EVIDENCE

Abstract
Authentication of social media is an essential measure to ensure that injustice is avoided.
With the increase in the usage and prevalence of social media around the globe, its presence
in the courtroom is unavoidable. On the one hand, social media provides a pool of
information and easily accessible data to the legal officials, and on the other hand tampering
and misuse of such information is no rocket science. In today's world and age, both the
importance and vulnerability of social media evidence cannot be ignored, and thereby the
next logical step is to build an efficient legal system. This paper outlines the need for more
rigorous tests for the reception of social media evidence and in doing so investigates the
nature of social media evidence. The paper also challenges the technical and scientific
loopholes in the existing legislation and lays down the changes that need to be incorporated
to protect the integrity of social media evidence in contemporary times.

I. Introduction
In the 2019 Indian general election, Bhartiya Janta Party (BJP), realized the potential to reach
an unlimited audience through social media networks and invested more than INR 20 Crores
on digital platforms.1 The brand Modi was humanized by sharing videos, GIFs, memes, songs
on all social media platforms including YouTube, Instagram, Facebook, and WhatsApp. The
results demonstrated an undisputed fact: social media is everywhere. In fact, as of January
2020, 3.8 Billion people actively use Social Media across the globe and on average a person
spends almost 100 days online in a year. 2 Affordable and easy access to social media has
made it possible for users to share personal and professional information with an unlimited
audience at a click of a mouse.
As digital’s role in our lives reached a new level every day, it was bound to enter the
courtroom as well. Information on social media is relatively permanent, easy to access, and
often spontaneous, thereby judges, attorneys as well as other legal professionals started
viewing networking sites as an indispensable source of evidence. As the usage of social

1
Samrath Bansal, How the BJP Used Technology to Secure Modi’s Second Win, Innovation Economy (June 12,
2019). https://www.cigionline.org/articles/how-bjp-used-technology-secure-modis-second-win
2
J. Clement, Social Network User, Statista (July 15, 2020). https://www.statista.com/statistics/278414/number-
of-worldwide-social-network-users/
media in litigation has become ubiquitous, setting standards for authentication of such
evidence becomes imperative.3
Part I of this article provides background information regarding the use of social media in
litigation. Part II discusses why social media evidence needs a greater level of scrutiny and
authentication. Part III analyzes why the current social media evidence-gathering mechanism
and legislative framework are not technically and scientifically feasibly. Finally, part IV
highlights the changes that can be incorporated for smoother and better functioning of
courtrooms when dealing with social media evidence.

II. Social media in court rooms: admissibility and discovery

As of 2020, Facebook accounts for 2.4 Billion active users per month, both WhatsApp and
YouTube have 2 Billion active users per month and other newer platform like Instagram has
also gained an audience with 1 Billion active users every month.4 There is no doubt that
social media has created a fundamental shift in how people interact and has become a trumpet
of thoughts.
The fact that information shared on social media, whether publicly or in private threads,
provide a reservoir of evidence to lawyers and other legal professionals cannot be ignored.
With the increasing prevalence of social media, evidence from all these accounts of the users
were introduced in civil as well as criminal matters by the litigants. The vital role of social
media in litigation gave birth to debates regarding how to deal with issues like
discoverability, admissibility, and authentication standards for social media evidence.5

A. Discoverability
With a shift in technology the discoverability of electronically stored information has
become the first step in a claim. During the discoverability process, the lawyer obtains
social media evidence from adverse parties and ensures that its client is complying with
its disclosure obligations. Unless, a document is privileged according to Section 126 to
129 of the Indian Evidence Act, 1872, every party is under an obligation to produce all
the relevant documents that are in its possession or power. This raises the issue of

3
Andrew B. Delaney & Darren A. Heitner, Made for Each Other Social Media and Litigation, N.Y. ST. B.J.,
11–12 (2013).
4
Supra Note at 2.
5
Elizabeth A. Flanagan, Sublet v. State and the Authentication of Social Media Evidence in Criminal
Proceedings, 61 L. Rev. 287 (2016).
 whether "private" content shared on social media falls under the ambit of "privileged" or
not.
Content shared privately between users is often mistaken as confidential, however if the
information is relevant it can be produced in litigation. As per Information Technology
Act, 2000, 'electronic record' includes any data stored, received, or sent in an electronic
form and can be used in litigation, irrespective of the fact, whether the information was
shared privately or publicly. However, if the documents are minimally important to the
litigation but the invasion of privacy is significant, the Court may refuse to order
disclosure of such social media data.
While discovering social media evidence, an advocate must at all times keep in mind their
ethical and professional obligations. As per the rules on an advocate duty towards the
court, an advocate is expected to act in a dignified manner towards the court as well as the
opposition.6 Using simple internet searches to find social media evidence, does not raise
any concerns. However, at the same time, if an advocate creates a fake social media
profile to elicit information from another parties' private account, it would be improper
conduct towards the opposing party, raising ethical concerns. Further, the guidelines by
the Bar Council of India state that an advocate is prohibited from directly negotiating with
an opposing party who has a lawyer.7 Thus, it is highly likely, that “friending” or
communicating directly with an opposing party on social media would not be an ethical
violation. Lawyers should consider their professional obligations while using social
media as an investigative tool.

B. Admissibility
The Discovery of social media evidence will be of no advantage if the same cannot be
made admissible in the courts. Section 65B of the Indian Evidence Act and Section 54A
of the Cr.P.C deal with the admissibility of the electronic evidence and were rationalized
by the Supreme Court in Anvar P.V v P.K Basheer8. The Court overruled its prior
judgment wherein it was held that the requirement laid down under Section 65B of the
Evidence Act of furnishing certificate to make the social media evidence admissible is not
always mandatory, rather it is procedural. 9 The court was of the opinion that the premises
of this judgment were wholly incorrect. Under circumstances where the parties are not in
6
Bar Council of India Rules, Advocate Act, 1961 (India).
7
Supra Note at 6.
8
Anvar P.V. v. P.K. Basheer, 10 SCC 473 (2014).
9
Shafhi Mohammad v. the State of H.P, 2 SCC 801 (2018).
 possession of the electronic device, an application can always be made to a judge for the
production of such a certificate.
Apart from acknowledging advantages gained by new techniques and devices, prevailing
legal principles and precedents also identify threats that social media may present. Social
media evidence is to be regarded with some caution and assessed in light of all
circumstances. Advancement of information technology and scientific temper has eased
the process of gathering information, but it has also increased the tampering of evidence.
It is expected by the judges to make social media evidence admissible in courts only after
strict scrutiny. Thereby an important step after the discovery of social media evidence and
before it is made admissible in the courts is the authenticity of the same.

III. Authenticating of social media evidence: why so crucial?

To ensure that the information made admissible in court, is what the record claims to be,
authentication is a must. Verified provenance and faithfulness to the original documents are
the attributes that are looked upon while proving the authenticity of physical documents.10
However, when dealing with social media evidence and its unique characters, complex
questions are raised. A great deal of work has to be undertaken to establish that the document
presented is what it purports to be.
This part of the paper brings forward the dynamics of social media evidence that make them
inherently malleable and mutable. The following technical and scientific issues highlight why
authentication of social media evidence is an unescapable procedure.

A. Ease in publication
One major reason that authentication of social media becomes both complicated and
imperative is due to the fact that social media accounts can be easily accessed. Firstly,
making a fictious profile is a piece of cake, especially for millennials. On July 15, 2020,
Mumbai Police, busted an international racket involved in the creation of fake profiles
after singer Bhumi Trivedi lodged a complaint. She alleged that her name and photos
were used by a fake profile on Instagram that claimed to be her official account. On
investigation, a man who was involved in creating fake profiles of influencers was
arrested. He created 176 fake accounts of different personalities, inflated the number of

10
Steven W Teppler, Testable Reliability: A Modernized Approach to ESI Admissibility 12 Ave Maria L Rev
213, 217 (2014).
 followers using bots, and then used the accounts to conduct business activities. 11 The case
demonstrates the relative ease with which anyone can create a fictitious persona online to
their benefit.
Secondly, another person’s profile can be simply attained by knowing the username or
password. Often many users save their passwords on their computers or other digital
devices itself and that does not help the situation. Further, the problem is enhanced when
passwords are nothing but easily accessible personal information of users that can be
cracked.
Thirdly, cybercrimes like hacking and phishing necessities authentication of social media
evidence. A recent survey showed that 22 percent of social media users said that their
accounts have been hacked at least once. 12 Hacking of accounts may result in a string of
posts or messages that may be used as evidence against the user even when the user is
completely oblivious. On the other hand, the defense of "my account was hacked" can
also be used by the defendant to dodge internet abuse. In an American case of Bussey
Law Firm PC and Timothy Raymond Bussey v Jason Page 13, the defendant made
defamatory comments on a lawyer and his firm on his social media account. When a suit
was filed, the defendant suggested that a third party hacked into his account and made
those comments however, the Court held that hacking into the defendant's account would
be challenging due to his sophisticated password and security settings. Further, the court
concluded that the communication was tracked to the defendant's IP address and there
were no reasons for anyone to hack into the defendant's account and make such
statements. Under such situations finding the authenticity and truthfulness of the evidence
can become challenging and even more important. Although analysing the facts and
circumstances of the case, thoroughly going through the evidence in hand can make the
task easier.
In either of the above case, finding the legitimate owner of a profile or the actual author
of a particular post is imperative. Making social media evidence admissible without
establishing that the account could not possibly be accessed by anyone other than the
account holder would most probably lead to unwanted circumstances.

11
Vallabh Ozarkar, Cops bust social media racket, Indian Times (July 15, 2020).
https://mumbaimirror.indiatimes.com/mumbai/crime/cops-bust-social-media-racket/articleshow/76969828.cms
12
George Beall, Hacking and social media, The Next Web (2017).
13
Bussey Law Firm PC and Timothy Raymond Bussey v Jason Page, EWHC 563, QB, (2015).
 B. Character assassination
The rigorous increase in usage of social media in the past few years has not been all
sunshine. Apart from providing a leisure space, a platform to showcase talent, raise voice
against injustice, social media is also used to share personal thoughts and opinions.
In this virtual marketplace of ideas, with an eternal audience, thoughts can also become
weapons. Social media platforms have little or no administration, thereby uncensored
opinions air every day, affecting millions of lives. Opinions and accusations made at a
person's morals, integrity, and public image can lead to character attacks or character
assassination.
Donald Trump's win in the 2016 American presidential election is an exemplary
illustration of how persuasive digital character assassination could be. The hashtag
"Crooked Hillary" incorporated in Trump's campaign was alone posted on twitter 5.8
million times between its debut and the election. The phrase "Lock her up" was also
triggered and posted on social media. Ultimately, the assault started against Clinton on
social media was so effective that by the end of the elections, Trump was successful in
completely transforming Clinton's reputation. In a span of a few months and millions of
tweets, she went from being the most qualified presidential candidate in history to one of
the most loathed one.14
The power of social media demonstrated above can blur the lines between the actual
conduct of a person and character assassination in a courtroom. Any social media
evidence that is used to question the credibility of either party, witnesses, or an expert
must be authenticated before it is made admissible.

C. Source of evidence
No doubt that social media provides a pool of evidence to all legal professionals however,
not everything obtained from the social networking sites can be made admissible in
courts. The law of evidence is supposed to be in alignment with the Constitution of India,
and thereby right to privacy cannot be ignored. The objective here is to authenticate the
source of social media evidence and to ensure that the integrity of the evidence is not
compromised before it is used in litigation.

14
Martijn Icks, Jennifer Keohane, Sergei Samoilenko, & Eric Shiraev, Character Assassination in Theory and
Practice, George Mason University (2015).
 Entities and individuals use data mining techniques to extract big data from social
networking sites. These include search patterns of users, personal information, and a
conclusive report of the users. Have you ever engaged in a telephonic conversation about
a commercial product with a friend and in the next moment the product is advertised all
over your social media? This is done through data mining. When data mining of social
networking sites is done by legal professionals, to obtain personal and private information
of the users it is outside the scope of the right to privacy guaranteed under the
Constitution of India and thus inadmissible in court. The dramatic technological changes,
and the lack of modern, coherent legal regime necessities that source of the evidence is
authenticated before it is made admissible in the court of law.15

IV. Current legal regime: incompetent

Although the rules around documentary evidence have been reviewed, considering electronic
evidence cannot be treated in the same manner as paper evidence. This section of the article
analyzes the existing rules of evidence and the need to further reform them.

A. Meaning of ‘document’
Section 3 of the Indian Evidence Act, 1872 states that "evidence means and includes all
documents including electronic records produced for the inspection of the court." Thereby
it can be concluded that the Evidence Act is broad enough to include documents created
and stored on social media handles. However, the existing legislation fails to illustrate the
fundamental differences between paper and electronic documents. The digital nature of
the latter imposes problems that are not addressed by the Evidence Act.
Firstly, unlike the hard paper, evidence obtained from social media is environment-
dependent and obsolescence in nature. Viewing social media data, without the needed
applications, can be incomprehensible and unreadable. Further, with changes in
technology and the development of new applications, users move from one networking
site to another. For instance, social networking sites like Orkut and Yahoo Messenger, the
most viewed websites of the early 2000s became non-existent within a decade. Restoring
or accessing data from such obsolete applications may not be beneficial or efficient.

15
Fred H. Cate, Government Data Mining: The Need for a Legal Framework, Indiana University Maurer
School of Law (2008).
 Simply introducing electronic evidence as part of ‘documents’ under the Indian Evidence
Act and not identifying the difference between discovering hard paper evidence and
digital evidence becomes futile.
Secondly, social media platform requires a storage medium for content storage, and a
social media 'document' may be stored in more than one medium. Therefore even though
electronic evidence is covered under the broad definition of 'document', the legislation has
not addressed the difficulty posed in authenticating social media evidence due to (1) it
may not always be possible to identify the creator of a ‘document’, (2) a ‘document’ can
have multiple authors and (3) the evidence may be later removed by the creator.16
Thirdly, unlike hard paper, social media evidence is persistent leading to the
accumulation of millions of documents for the litigator to review. Relying on
contemporary methods of discovering and reviewing is imprudent.
Thus, it can be concluded that ‘document’ as defined under the Indian Evidence Act is not
sufficient to social media evidence as it fails to identify that electronic evidence
comprises both content and storage media.

B. Original document rule

The basic principle behind the original document rule is that instead of producing a copy,
the original document of evidence must be produced before the court to prove its
genuineness. The principle is an effective measure when dealing with hard paper but the
same is also embedded in Section 60 and 64 of the Indian Evidence Act, which deals with
electronic evidence and social media evidence. Information and volume of social media
data are much greater than hard copy documents. As the cost of accessing social media
continues to decrease, it has become much easier for users to store everything in different
locations. Due to creation, transmission, replication, backup, and archival social media
documents can be present on several media and locations. As large volumes of social
media documents are being capable of being reproduced identically, the concept of
original document rule enriched in Section 60 and 64 of the Indian Evidence Act, is more
or less redundant.

C. Unskilled law enforcement officials

Even though there are certain loopholes in the existing legislation, the use of social media
evidence in judicial proceedings has gone a long way, especially after the enactment of
16
Allision Rebecca, Authentication of Electronic Evidence, Queensland University of Technology (2016).
 the Information Technology Act 2000, and the subsequent amendments made to the
Evidence Act. However, the legislation is of no good if they are not implemented
effectively. The main hindrance faced is that investigating officers are not skilled enough
to gather the evidence in a manner that the chain of custody is preserved from the time of
collection until it is presented at trial. In-State of Punjab v Amritsar Beverages Ltd17, the
Supreme Court concluded that legal officials lack training and expertise when dealing
with social media evidence, thus the admissibility or the weight that is attached to the
evidence presented in the court is affected. Moreover, even though the amended Acts give
a good picture of digital evidence admissibility, it leaves grey areas on subjects like
privacy and moral ethics, which imposes a further hindrance while evidence is collected.
Secondly, the Indian judiciaries, especially the lower courts, are not technologically
sound due to the underdeveloped and poor judicial system. Even though developments
have taken place in the Indian Technology Act, judges of lower courts are not well aware
of the changes taking place. As long as the courts are not well skilled when dealing with
digital evidence, ensuring the authentication of evidence presented becomes difficult.
Currently, barring a few expectations, the amendments made to the I.T. Act, namely
Section 65A and 65B of the Evidence Act, are predominantly ignored.

V. How to ensure smoother functioning of courtrooms?

So far, we have established that the authentication of social media evidence is not only
imperative, but it is also much more complex than authentication of paper evidence. As it
becomes difficult to prove which document is original and what it purports, changes need to
be implemented in the current regime to ensure smoother functioning of the legal
proceedings. To ensure justice is delivered and no wrongdoing is committed while admitting
social media evidence, the following measures can be taken.

Firstly, the Indian Evidence Act needs to be further amended to ensure that the duplication
and manipulation of social media evidence are controlled. A provision requiring prima facie
authenticity of the evidence by a third party can be introduced. The rationale behind this is
that no disinterested party would be willing to certify the authenticity of a document that has
been tampered with. Thus the discovery of social media evidence that has been authenticated
by a third party under the provisions of the Indian Evidence Act, becomes more reliable and

17
State of Punjab v Amritsar Beverages Ltd, 7 SCC 607 (2006).
accurate. The law also needs to creatively address the limitations of dealing with social media
evidence. The plain reading of law does not deal with the fact that social media evidence can
be easily fabricated, forged, or altered. Such alterations are often not detectible by the
recipient, and therefore a certificate of a third party to the dispute may not always be a
reliable condition to provide for the authenticity of the document. Perhaps, it may be prudent
for the courts or the government to set up a special team of digital evidence specialists who
would assist the courts and specifically investigate the authenticity of the evidence presented
before the court.

Secondly, metadata can be used to provide an efficient way to ascertain the truth. Simply put,
metadata is data about data.18 It is valuable in knowing how, when, and where a user posted
on their social media account and thereby aids in authenticating social media evidence. For
instance, when an account holder posts on Instagram, the said application collects
information about the computer or smartphones used to access the app. Everything from the
IP addresses, device identification number, location at a specific time of the user is stored.
During litigation, such information can be used to identify the originator of the social media
posts by establishing a link between the computer used and the person who could have access
to such a device at a given time and place. 19 So, if a defendant claims that the post in question
was not made by him/her and rather the account was hacked, however, according to metadata
the post was made from the defendant's place of the residence itself, the argument of the
defendant would hold week in the court.

Thirdly, to ensure that the admissibility of the evidence or the weight that may be attached to
such evidence by the court is not affected in the trial, the investigators and legal officers can
adopt the science of 'computer forensics' during the discovery of social media evidence. To
ensure that the evidence gathered withstands both judicial scrutiny and of opposing parties,
computer forensic methodology identifies, preserves, analyze, and presents any evidence
gathered in a forensically sound manner.20 Firstly, to remove any doubt over the reliability of

18
Lindsay Wise & Jonathan S. Landay, Government Could Use Metadata to Map Your Every Move, MIAMI
HERALD (2013).
19
Richard S. Kling et al., Admissibility of Social Media Evidence in Illinois, 105 ILL. B.J. 38, 41 (2017).

20
Rodney McKemmish, IFIP International Federation for Information Processing 285 Advances in Digital
Forensics IV 3. (2008).
the evidence, all errors must be reasonably identified and explained. Secondly, the process of
collecting the evidence shall be made transparent and should be capable of being verified in
its entirety. Finally, the data must be analyzed and interpreted by an individual with sufficient
and relevant expertise.
The growing usage of social media not only requires an efficient way of investigation and
collection of data but also imposes an urgent need to impart technical training, knowledge,
and evaluation criteria to the judicial officials. A Judge is not only expected to make a
judgment regarding the credibility of the witnesses presented but is also required to interpret
the nature of digital data in accordance with the evidence presented. Even though the legal
obligations are laid down, social media evidence cannot be used to its maximum capacity
unless judicial officials well adhere to the technical know-how and self-regulated ethical
obligations. A well-trained legal official with ethical conduct would be able to identify
accurate and trustworthy information and conduct a comprehensive examination of the
evidence presented.

VI. Conclusion
The current public appetite of the users of social media and its ubiquitous nature makes it
highly unlikely that the relevance of social media evidence will cease to exist in civil or
criminal cases. Considering the importance of the social media evidence, amendments to
legal legislations and development in judicial precedents have taken place, however, some
changes are needed to ensure that the integrity of the evidence presented is not condemned.
As social media evidence can be easily hampered, altered, modified, and can be used for
character assassination, the current rules of evidence need to be modified to adequately
safeguard the proper authentication of evidence. Moreover, gathering and discovery of
evidence from social media blurs the line of privacy and may lead to violation of fundamental
rights of the parties under certain circumstances, thus the source of evidence need to be
properly looked upon before such information is admitted into court and an appropriate
weight is attached to it. To conclude, this article not only sheds light on the nature of social
media evidence but also puts forwards suggestions that can be adopted by courts and lawyers
to ensure that the evidence presented is what it purports to be.