Preserving Digital Evidence Example: Online Harassment

This document provides an example of what technology-facilitated gender-based violence (TFGBV) might look like and what steps you can take when faced with this violence to preserve relevant digital evidence. For specific information about the legal remedies available to you when faced with TFGBV and specific methods for preserving digital evidence, see the other documents in the Legal Remedies Toolkit and the Preserving Digital Evidence Toolkit.

Grace and Yael are in the middle of a heated custody battle over their son. Grace has been sending Yael texts and emails every single day, some of which she sends in the middle of the night. Some days, it is more than 100 texts. Grace’s messages are sometimes about their legal issues and arranging drop-offs and pick-ups for their son, but a lot of them are Grace going on about the reasons she is upset that they broke up. Others are calling Yael names, saying she is a bad person and that Grace is going to “get her” if she takes away their son. Some of the texts that Grace sends have information that Yael never gave to her, and Yael is worried Grace might have hacked into her email. Yael has asked Grace to stop texting her so much and to only text her about their son.

Recently, Grace’s behaviour has escalated. Grace has been posting awful things about Yael on Facebook, saying that Yael is a terrible mother and is using the courts to turn their son against Grace. She has been following Yael and their son and filming them with her phone while they are at the park, yelling at them that she is going to use this as evidence in their case to show that Yael is a bad mother. Grace has posted some of these videos on Facebook and Yael is starting to feel afraid of Grace.

Grace could potentially be charged with the criminal offence of harassment. Yael may also be able to sue Grace for breaching her privacy, defaming her, or intentionally inflicting mental distress. Because they are already involved in a family law dispute, Yael could seek a protection order limiting Grace’s contact with her and/or her son. As Grace is afraid for her safety, she might also decide to go to the police and ask for a peace bond. For information about the processes for obtaining peace bonds and protection orders, see: Peace Bonds and Protection Orders for Victims of Technology-Facilitated Violence. For detailed information about possible legal remedies in cases of technology-facilitated stalking and harassment, like the scenario set out above, see Legal Remedies for Online Stalking, Harassment, Spying, and Threats.

To support any complaints to the police or a civil claim, Yael will need to collect digital evidence of Grace’s harmful behaviour. Throughout, Yael should be mindful of any risks to her safety that might result from collecting this evidence. See: Safety Considerations for Preserving Digital Evidence.

Below is some general information about the types of evidence Yael should try to preserve. For more information, see Preserving and Storing Evidence of Technology-Facilitated Violence: Best Practices and the guides on preserving certain types of digital evidence linked below.

• Yael will want to keep a copy of all the text messages Grace has sent her to show how excessive the texting has been. In a case like this, it could be thousands of messages, which means it would be very time-consuming to screenshot each one. She can see if the messaging application she uses has the option to export all of the texts at once. Otherwise, she can screen record or take a video of her slowly scrolling through all the text messages, and then screenshot the texts that are relevant to her case according to the advice of the police or her lawyer.
• She should make a note of and screenshot any date and time when Grace sent messages that were harassing, threatening, excessive, or made Yael uncomfortable. The court may or may not want to read every single message Grace ever sent, so it is important to have all the messages saved while also working with a lawyer or police to identify which specific messages are relevant. Once Yael or her lawyer has determined which are relevant to her case, she can then show the court those texts.
• She should make a note of and screenshot any date and time when she sent a message to Grace asking her to stop sending so many messages or saying that she was making Yael uncomfortable.

• Yael will want to keep a record of all of the emails that Grace has sent her.
• She should keep the original copy of all of the emails. These emails contain important metadata about when the email was sent and from whom. If the email is forwarded and then saved, it loses the metadata from the original message.
• She may want to create a special folder in her email account where she stores all of the emails from Grace. Because Yael is worried Grace has access to her email account, she should make sure to save additional copies of these emails on her hard drive, on a USB drive, or elsewhere. If Grace has access to Yael’s email account, she may delete the messages. Yael should also consider changing the password to her email account and any other accounts Grace may have access to, if it is safe to do so.
• If she prints out the emails, she should print out all the messages that go back and forth on an email chain in one document. This will make it easier for the court to follow, compared to printing out each email and response individually.

• She should keep a second document, such as an Excel spreadsheet or a Word document, that makes notes of which emails contain what information and to make note of any emails that were harassing or threatening.
• Yael should also make note of any emails that she sent to Grace to tell her to stop sending so much communication or that it was making her uncomfortable.

• Yael should go into her email account and look at the “Last Account Activity” or “Account Activity” to see if any unusual IP addresses are accessing the account. Yael will need to know her own IP address and will need to remember if she has used other Internet connections, such as her workplace or a coffee shop, to cross-reference the IP addresses listed on the account.
• If there are unidentifiable IP addresses, Yael should take a screenshot of them as it might help show that Grace has been accessing her email if one of the IP addresses that accessed her account is Grace’s. However, if Yael doesn’t know what Grace’s IP address is, it may be difficult to find out. Yael may need to get assistance from the police or the court to do this. Yael will need to bring evidence of why she thinks Grace is accessing her emails, such as any of the texts or emails that mentioned things that Grace could only know if she had access to Yael’s email.

• If Yael is friends with Grace on Facebook and can see the posts herself, she should take screenshots of the posts that Grace makes about Yael, including the posts of the videos Grace has filmed of Yael and their son.
• She should make sure the screenshot includes the date and time of the post and information that can prove the account belongs to Grace. The evidence will need to show a connection between Grace and the posts.
• She should take a screenshot of the profile information associated with the account. If Grace uses a fake name on her profile, it will be important to collect other evidence shows that Grace uses that account, such as other posts on the account that have her photo or other information that could prove it is her account.
• If Yael is not friends with Grace on Facebook, she may need to ask a friend or family member to collect this evidence on her behalf. She may need to ask that friend to act as a witness if the case goes to court.

Technology-Facilitated Gender-Based Violence (TFGBV) is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing TFGBV, you are not alone. You can use sheltersafe.ca to find a shelter/transition house near you or call/text the Kids Help Phone to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

We gratefully acknowledge Moira Aikenhead for providing expertise to update this toolkit and Suzie Dunn of The eQuality Project at the University of Ottawa for providing expertise and guidance on the creation of this information sheet. 

Adapted with permission from BCSTH’s Technology Safety project, based on their resource Technology-Facilitated Violence: Preserving Digital Evidence Toolkit.