Ben PerrinCanada's criminal justice system must adapt to today's digital platforms, which are opening up new spaces for social media crimes, says Benjamin Perrin. 

By Benjamin Perrin, Oct. 6, 2017

Othman Ayed Hamdan's recent acquittal by the BC Supreme Court on terrorism-related charges for alleged pro-Islamic State posts on Facebook is the latest example of the challenges of investigating and prosecuting crime committed on social media.

As Mr. Hamdan's case illustrates, our criminal-justice system is struggling to adapt to the social-media environment. Criminal law can be lethargic in reacting to technological change. It took Parliament 85 years after the invention of the telephone to update the Criminal Code's uttering-threats offence to ensure that death threats made by phone were included, as opposed to just threats made in something quaint called a "letter."

Canada is a digital country with more than 20 million people active on one or more social-media networks: 59 per cent of adults are on Facebook and 25 per cent have a Twitter profile. The proportion of 18- to 34-year-olds is even greater with 75 per cent on Facebook and 36 per cent on Twitter, while Snapchat is accessed by 41 per cent of 16- to 24-year-olds. Adoption rates are highest among young people.

Social media's perceived anonymity, virtual nature and ability to amplify communications globally present real issues for national criminal laws. It promises benefits for commerce, education, political expression, associating with others and advocacy. But research shows social-media crime is increasing, and this borderless digital commons is rife with sexism, racism and Islamophobia.

Research shows social-media crime is increasing, and this borderless digital commons is rife with sexism, racism and Islamophobia.

Our preliminary research has found social media is increasingly relevant in reported judicial decisions in criminal cases, including 1,844 cases referring to Facebook (launched in 2004), 149 involving Twitter (launched in 2006) and 15 related to Snapchat (launched in 2011). Some of these include charges stemming from social-media activities involving sexual offences, uttering threats, criminal harassment and terrorism-related offences.

While our analysis into these decisions has only just begun as part of a new UBC study, we're seeing some intriguing potential trends.

Establishing the identity of online perpetrators continues to be a continuing issue in the prosecution of certain social-media crimes, particularly sexual offences. Many accused claim someone else made the impugned postings. At times, courts have acquitted on this basis due to a reasonable doubt, but others have rejected these claims in light of common sense and circumstantial evidence. Proving identity is always required and police have used creative ways in establishing it.

A significant challenge is proving the accused had the necessary mental fault or mens rea for their social-media postings. It's not enough for an uttering-threats conviction to prove that someone made a threat of death or bodily harm. Prosecutors must also prove beyond a reasonable doubt that the accused intended the threat to be taken seriously, or to intimidate. Mental fault is an essential element of every offence and tough to discern online. It's a major reason why many prosecutions, including Mr. Hamdan's, fall apart.

Many judges are unfamiliar with, or lack an understanding of, social-media networks. It's clear from many judgments that some judges have never stepped foot on social media platforms. Judges should walk the streets of the communities in which they are adjudicating. It should not require expert evidence to explain basic concepts such as a retweet on Twitter. In addition to more judicial education, digital immersion is key. Judges should sign up for a social-media account and explore their interests within the bounds of appropriate judicial conduct.

Social-media evidence is not being consistently and adequately collected by police and presented by Crown prosecutions.

Also, social-media evidence is not being consistently and adequately collected by police and presented by Crown prosecutions. The technology of capturing social media content is steadily improving but reported decisions show a gulf between some police forces who use modern technology to capture reams of potentially relevant data related to the context of individual posts and others, as in the Hamdan case, who reportedly just took screenshots of them. The court found this evidence lacked integrity, meaning it could have been altered from its original form.

Finally, the Canadian Charter of Rights and Freedoms applies online. Breaches, including unreasonable searches and seizures, have unnecessarily occurred in the often quixotic quest to bring law to the disorder of the Internet. In Mr. Hamdan's case, police searched his e-mail accounts without a warrant.

Social media has revolutionized a wide range of fields, including journalism, communications, marketing, politics, civic engagement and advocacy. Criminal law is next on the list for disruption and significant work is needed to improve its response.

Benjamin Perrin is a law professor at the University of British Columbia, Peter A. Allard School of Law and a Munk Senior Fellow in Criminal Justice at the Macdonald-Laurier Institute for Public Policy, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca