The legal system needs to “factor in” the potential for the cyber staging of evidence, according to a cyberpsychology expert.
"I get very worried when I see convictions based on cell tower pings and mobile phone text messages when both of these are eminently hackable," Dr Mary Aiken told an Irish lawyers' conference heard at the weekend.
The UCD academic, whose work inspired the CBS show CSI: Cyber, said human behaviour is changing because of technology and the law is struggling to keep up.
She was speaking at a conference in Malaga, Spain, organised by the Bar Council of Ireland, which focused on defamation and other matters.
Barrister and former minister for justice Michael McDowell said science may be close to being able to replicate DNA. False text messages can be created and placed on people's phones and false video and still photographs can be created. "Suddenly a lot of our preconceptions about what was impossible to prove or disprove, or things on which it was safe to rely, have suddenly evaporated before our eyes."
He also said technology and social media had “imperilled” the jury trial.
“I passionately believe in jury trials,” he said. “They are one of our lasting civil liberties.”
Liam McCollum QC, chairman of the Bar of Northern Ireland, referred to the recent rape trial in Belfast, and the proliferation of social media comment when the matter was still before the jury.
He said the problem had been dealt with by the legal system. “The case was decided by the evidence heard in court, not by the social media aspect.”
Mr McDowell said that during Dr Aiken’s successful campaign to have the digital age of consent set at 16, the Government had been “leaned on” by the major tech companies.
“Sometimes I think the nation state is dissolving but international capitalism, international money power, is driving a lot of what is happening,” he said.
Unchecked social media
Vincent Crowley, the chairman of Newsbrands Ireland, said social media comment had almost led to the collapse of the Belfast rape trial and the Jobstown trial in Dublin.
"Unverified and unchecked social media comment" put the trials in jeopardy but Facebook and Google are not treated in the same way as newspaper publishers. The law treats these major technology companies as not being publishers from the point of view of defamation.
“Facebook and Google need to be treated appropriately, as newspapers would be in a similar situation.”
Newsbrands represents Irish newspaper publishers, including The Irish Times, as well as the Irish editions of UK newspaper publishers.
Mr Crowley said it was “telling” that Facebook, Google and YouTube had banned advertisements directed at the abortion referendum campaign and said this might be the beginning of a realisation by these companies that they should be responsible for the material they publish.
In an address about regulation of the media in a post-Leveson digital world, Mr Justice Robert Jay, of the High Court of England and Wales, said the application of the law to the internet was extremely problematic as “the internet spirals almost out of control”.
An international consensus on what should be done was needed, as otherwise society was just fighting a losing battle.
What is happening in places like the Russian Federation, where there are “alleged attempts” to use the internet to influence political opinion in jurisdictions such as the UK and the US, is a “real challenge”.
