May 6, 2021 by Greg Meckbach
Claims professionals who rely on videos and photos obtained through social media investigations need to make sure that evidence can be backed up as authentic, Virtual Symposium B.C. speakers suggest.
There are several reasons why a social media investigation is useful during a claim, said Gavin Phillips, regional manager of investigations for xPera. Benefits include locating evidence, and identifying and locating witnesses.
“More and more, [social media investigations] are a critical component to determine the potential for recovery and legal action, especially when you are dealing with the kind of subjects who won’t necessarily keep properties, vehicles, and other assets in their name, but will not be able to resist posing with them on their Instagram accounts,” Phillips said Tuesday during a panel at Virtual Symposium B.C.
Also on the panel was Amelia Martin, a lawyer with Dolden Wallace Folick, whose areas of practice include defending bodily injury claims. When it comes to video and photo evidence, authenticity is important, Martin said during the panel on social media sleuthing.
“Essentially, the rule at law is you need to have a witness who is able to authenticate a photo or video that you are relying on.”
This is because electronic photos can be edited with software.
Before Martin joined Dolden Wallace Folick, she was part of the defence team for a Toronto Police officer who was acquitted in 2014 on charges of assault with a weapon. Those charges arose after the 2010 G20 summit.
In the charge against the officer, the Crown to tried to rely on a photo published anonymously on the Internet. That photo, which was published without metadata, purported to be that of both a Toronto police officer with a baton raised, and a civilian.
But in a decision released in 2014, Ontario Superior Court Justice Gary Trotter ruled that the photo was inadmissible. The officer was subsequently acquitted.
In cross-examination, an expert witness for the Crown admitted she was unable to say that the image had not been altered. All she could say was that there was no evidence that it had been altered, Justice Trotter noted in his 2014 ruling on the admissibility of the photo.
“In defending the charge, we attacked the authenticity of the photo,” Martin said Tuesday during the social media sleuthing panel at Virtual Symposium B.C.
“At the time, there were very few cases that actually delved into how a photo is properly authenticated. Since the introduction of photographic evidence, when courts started actually using photographic evidence on a regular basis, authenticity was something that was kind of taken for granted. The courts, because of the sort of lagging technology, were very slow to recognize the difference between a digital photograph and how a digital photograph may be able to be manipulated, versus a photograph that had been taken on film.”
Part of the problem was the lack of metadata with the anonymously-posted photo. The panel discussed Tuesday the importance of gathering metadata in social media investigations, and in verifying the authenticity of what is posted online.
“It used to be that if you had video online, you could pretty much count on that video being accurate,” said Phillips. “We are reaching a point where that is simply not going to be true anymore. Technology out there to create fake videos and fake images is getting to a point that it is going to be affordable, it is going to be widely available, and it’s going to be entirely capable of fooling the human eye. We do have services to provide video analysis to determine if a video is fake or not, but there are some easier ways as well.”
An example of metadata is the EXIF (Exchangeable image file format) data from digital photos.
Depending on how hardware and software is setup, metadata could include GPS coordinates of the location at which the photo was taken, the name of the device, and other useful info can be read by anyone who gets a digital copy of the photo and has the necessary software to look at the metadata, said Phillips.
Virtual Symposium B.C., which is produced by the Insurance Institute of B.C., wraps up May 6.
Feature photo courtesy of iStock.ca/filadendron