Q&As

Can a party use pictures that have been obtained from social media as evidence in legal proceedings?

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Produced in partnership with Ashley Roughton of Ipchambers.eu
Published on LexisPSL on 06/01/2016

The following Information Law Q&A produced in partnership with Ashley Roughton of Ipchambers.eu provides comprehensive and up to date legal information covering:

  • Can a party use pictures that have been obtained from social media as evidence in legal proceedings?
  • Copyright
  • Data protection

This question can be answered from two perspectives: privacy and copyright.

Copyright

This part of this Q&A applies in all cases where pictures are taken, whether or not they are pictures of identifiable individuals.

Copyright usually subsists in a photograph—it is best to assume that it does. Making a copy of it is therefore an infringement of that copyright. However there is a blanket exception where that copy is made for the purposes of judicial proceedings. This would include preparing evidence for any kind of hearing, case or proposed hearing where an independent judge (which includes a jury) sits to determine a legal cause of some sort. There is no case law on the topic as such but it is likely that this exception will be construed widely so as to cover any conceivable type of legal proceedings (such as arbitrations, mediations and so on).

See Practice Note: The scope of photographic copyright—the Red Bus case.

Data protection

This part of this Q&A applies only where pictures are taken of identifiable individuals.

Subject to certain formalities, a party can use pictures that have been obtained from social media as evidence in legal proceedings when viewed from a data protection perspective. Even if the formalities are not adhered to the evidence is still admissible but certain regulatory (and in some cases criminal—see below) consequences may follow. Importantly the user of the photograph

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