Article 53 – Thumbs Up? The Influence of Social Media and the Digital World on the Law and the Legal Profession
Thumbs Up? The Influence of Social Media and the Digital World on Law and the Legal Profession
By: Mr. Martin George
Attorney-at-law
Martin Anthony George & Co.
Attorneys-at-law
(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)
DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.
INTRODUCTION
Nowadays, social media, the term used to refer to the collection of digital technologies which facilitate the sharing and exchange and public dissemination of text and multimedia content, is an ever present part of almost every facet of life today. For the average person who owns and/or uses a computing device like a laptop or a cell phone, the use of email and social media applications such as WhatsApp Messenger, Facebook and Instagram, Tik Tok, are likely to play an integral role in the way in which those persons communicate with others electronically, and the evolving trend of these technologies has been that even those who may in the past have considered themselves not to be technologically savvy, would admit that on a daily basis they use one or more of these applications, as well as several others as part and parcel of everyday life.
Generally speaking, law and the legal profession have not escaped the impact of social media and other rapidly developing digital technologies, and legal professionals use and rely on a wide variety of them. This article is focused on the way in which social media and current digital technologies have impacted upon the legal world, and also the way in which they are used to facilitate and underpin the offering of legal services.
THE SYNERGY OF SOCIAL MEDIA AND DIGITAL TECHNOLOGIES WITH LEGAL PRACTICE
For the modern legal professional, there are few strands of legal practice which are not now heavily dependent on and do not utilise some form of social media or a digital technology. Matter management systems such as Clio, HighQ and Practice Panther are some of the more popular options utilised by law firms and sole practitioners to manage their day-to-day matters and workflows, and these typically include built-in document management features which streamline productivity. These applications perform a wide range of functions, some of which are client intake, task and event scheduling, as well as billing and invoicing, just to name a few.
Communications technologies such as Zoom and Microsoft Teams make communication easier. Clients are even able to meet with their Attorneys virtually and Attorneys are able to conduct a client’s matters without the client ever having to set foot in a physical office, especially in light of all of the advances in digital security and electronic signatures. Our very own Judiciary uses the Microsoft Teams platform to support its virtual court operations, with the effect being that judicial officers and their support staff, legal practitioners, and litigants, are able to be in any part of the world and still be able to attend and participate in court proceedings all being together in the same virtual place. Coupled with the use of Microsoft Teams, the Judiciary’s E-Filing platform has made the process of filing legal documents at the Court as simple as a few clicks of a mouse, instead of one having to physically go to the relevant Court office to file physical documents and bundles of copies thereof.
Cloud storage services like One Drive and Google Drive are used as cloud storage solutions and make the process of collaborating on and sharing files easier, particularly those large files which are unable to be sent via email. These applications can be installed on the average computing device and allow users to create, edit, share, and collaborate on documents from their laptop, tablet, or smartphone, which is particularly convenient, especially for those legal professionals who are always on the go.
From an evidential point of view, email threads, WhatsApp messages, screenshots of Facebook messages and posts, audio recordings, and video recordings, are all used and relied upon by litigants to both prove and defend against claims. This has transformed the way in which litigation matters are conducted, and these are just some of the many examples of the categories of evidential material which assist judicial officers in the determination of Court matters.
SOCIAL MEDIA AND DIGITAL TECHNOLOGIES IN THE COURTROOM
In June 2023, a Judge in the Canadian Province of Saskatchewan created what is considered to be a unique legal precedent when ruling that a “thumbs up” emoji was capable of constituting a legally binding contract (South West Terminal Ltd. v Achter Land & Cattle Ltd. 2023 SKKB 116). The case concerned a dispute between a farmer, Chris Achter, and a grain processing co-operative in Saskatchewan. Due to the Covid-19 pandemic and the efforts to minimise face-to-face contact, South West Terminal stopped sending its sales representatives to deal with farmers face-to-face, instead relying on communication via telephone and email. After a South West Terminal employee drafted a contract, signed it, took a photo of it on their cell phone and sent it to Mr. Achter, Mr. Achter received the photo and responded with a thumbs up emoji. By this “thumbs up” emoji, it appeared to South West Terminals that Mr. Achter, agreed to the terms of the contract whereby he was required to send the grain to South West Terminal by a certain date, never did. South West Terminal sued Mr. Achter for breach of contract and claimed for damages for the breach of Contract in this regard. Mr. Achter argued that he never entered into any contract with South West Terminal for the supply of grain. The Judge decided that the signature requirement with respect to contracts was met by the thumbs up emoji being sent by Mr. Achter’s unique cell phone, and though acknowledging that a thumbs up emoji was a non-traditional way to sign, the Judge held that the contract was validly signed and thus was enforceable.
In a local defamation matter determined by the Court in August 2022, the Judge awarded the Claimant the sum of Seventy-Five Thousand Dollars ($75,000.00) in general damages inclusive of aggravated damages (CV 2020-00493 MS v CH). Both the Claimant and the Defendant were members of the Trinidad and Tobago Police Service (TTPS), and were also participants in a WhatsApp Messenger group chat titled “Central Watch”. The Defendant responded to a message in the group chat posted by the Claimant and made certain statements and remarks about the Claimant, suggesting that the Claimant had slept around and used sexual favours in order to be placed on a particularly favoured task force and that the Claimant’s partner was a “bandit”. The WhatsApp messages from the group chat were produced before the Court, and were used to help the Court decide that the Claimant’s allegation that she had been defamed and was entitled to Damages.
In another matter brought before our local Courts based on defamation, the Court had to deal with the issue of statements being published on Facebook, and whether the Defendant could be liable for same (CV 2016-02974 DRA and Ors. v Jenelle Burke). The Claimants and the Defendant were next door neighbours, and after previously being on good terms, the relationships between them ended up being strained. Over time, the Defendant verbally assaulted the Claimants, referring to the Second Claimant as “a whore who made fares”, calling the First Claimant a ‘raperman’, (a term used in the local parlance to describe a Rapist) and accusing the First Claimant of sexually abusing the Third and Fourth Claimants, who were the children of the family. It appeared that the allegations of this supposed pattern of behaviour eventually made its way to Facebook, with the Claimants being aware of certain Facebook posts made by the Defendant in the same vein as the words used in the prior instances of the verbal assaults against them. The Court decided the matter in favour of the Claimants and awarded them damages, and in what was a landmark judgment at the time, the Court held that posts on social media sites such as Facebook, Whatsapp and Twitter were able to satisfy the legal test for publication set out in Crookes v Newton 2012 1 LRC 237.
On 25th May 2020, the encounter between George Floyd and Minneapolis Police Officer, Derek Chauvin, was recorded in a chilling nine (9) minute video by a nearby observer. In this video recording, Mr. Chauvin was shown kneeling on the neck and back of Mr. Floyd while Mr. Floyd gasped for air and repeatedly uttered the words “I can’t breathe”, which have now become a slogan for the Black Lives Matter Movement. After the death of Mr. Floyd, this cellphone video evidence formed a crucial part of the prosecution’s case in relation to the criminal charges brought against Mr. Chauvin by the State of Minnesota. At the end of the trial, Mr. Chauvin was convicted of second-degree unintentional murder, third degree murder and second-degree manslaughter.
In the USA, in the currently ongoing murder trial of rapper YNW Melly, who, along with Courtland Henry, is accused of murdering Christopher Thomas Jr. and Anthony Williams in 2018, prosecutors recently presented as evidence several cell phone videos and social media messages to bolster their case. Several videos of the rapper, which the prosecution asserts were recorded by him on his cell phone, as well as text messages and messages sent on social media platforms form part of the prosecution’s case against him. One video which was shown by the prosecution in the courtroom was alleged to have been recorded by YNW Melly hours after the murders, and in another video, the rapper speaks about turning himself in to the authorities.
Certainly, social media and digital technologies add great value to modern society, and to law and legal professionals in particular, and it is likely that as the technology evolves further, there will be additional benefits to be gained from the use of same as the legal profession has given it a resounding “Thumbs Up”.
Thumbs Up? The Influence of Social Media and the Digital World on Law and the Legal Profession
© 2023 MARTIN ANTHONY GEORGE & CO